SUPPLEMENTARY MEMORANDUM FROM THE DEPARTMENT
FOR EDUCATION AND EMPLOYMENT
TUPE (Q.190)
TUPE: means the Transfer of Undertakings (Protection
of Employment) Regulations 1981. These regulations were brought
into force to comply with EC obligations under the Acquired Rights
Directive 77/187.
It is overwhelmingly likely that TUPE will apply
to any large scale contract to outsource LEA functions. The Islington
contract was drafted on the basis that TUPE will apply and by
signing up to it, the contractor is accepting that TUPE will apply.
The Islington contract will also protect staff pension rights:
transferring staff who belong to the Local Government Pension
Scheme or Teachers's Pension Scheme will be able to remain in
those schemes. The plan is that the same TUPE/pensions provisions
would apply to any future outsourcing of LEA functions as a result
of a direction made by the Secretary of State. The relevant pensions
regulations have, or are, being amended so that staff who transfer
to the employment of an outside contractor can remain within the
respective schemes.
Our experience of how TUPE relates to individual
school circumstances has been informed largely by the Fresh Start
process where LEAs choose to close down a failing school and re-open
a new school on the same site in order to establish a new identity
with a new ethos to break away from the culture of failure that
existed before. In undertaking a Fresh Start LEAs are required
to comply with existing employment legislation. The application
of TUPE to Fresh Start circumstances has been widely reported
by the education media. Our experience to date suggests that where
a Fresh Start results in a change of employer (ie when a community
school closes and a voluntary aided school opens in its place),
TUPE regulations are likely to apply and staff's employment rights
are likely to be protected. Conversely, where a Fresh Start results
in no change of employer (ie a community school replacing a community
school), TUPE regulations are unlikely to apply. The use of a
Fresh Start, which has to be approved like any other change by
the School Organisation Committee, is not an alternative to taking
capability or competence proceedings against under-performing
teachers or other staff.
Individual LEAs are responsible to seek their
own legal advice in each particular case. We have no plans currently
to make legislative changes to alter the situation in relation
to Fresh Start schools.
DfEE
January 2000
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