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Baroness Blatch: I thank the Minister for giving way. The noble Baroness has not returned to my fundamental question: who is employed at a school otherwise than under a contract of employment? To

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my knowledge, that could cover only voluntary labour. It is not a sessional worker, a part-time worker and/or a full-time teacher or full-time member of staff.

Baroness Ashton of Upholland: I thought that I answered that within my first grouping when I described those who worked as cleaners or for the provision of meals, which are contracted out services. People who come into a school from a different school or a further education establishment, or—in looking at the world of information technology—people who may be employed on a different basis other than a contract of employment to provide services to the school are examples. I hope that that satisfies the noble Baroness. I did cover the matter earlier.

Baroness Blatch: It does not cover the matter because Clause 35(5)(b) states that,

    "teachers and other staff to work at a school otherwise than under a contract of employment".

That is not "a contract of employment to the school", but "otherwise than under a contract of employment". Anyone coming in to work at a school, whether a caretaker, cleaner, someone to mend the roof or someone to put some tarmac down in the playground, is someone who would be "under a contract", which is the actual wording on the Bill, but not necessarily under a contract to the school as the employer.

Baroness Ashton of Upholland: My understanding, having taken legal advice, is that the way that the amendment is framed would mean that those people would have to be under a contract of employment to a school and that people who work, for example, providing a consultancy or advisory service on technical aspects of information and communications technology may not be under a specific contract of employment. They may be self-employed individuals who give their services to a company with whom a school may sub-contract. The way that the amendment is phrased means that we would have to have contracts of employment. We are trying to ensure that schools are able to develop flexible arrangements, with which I am sure the noble Baroness agrees, under which people can work within schools under different arrangements from those of a contract of employment.

Baroness Sharp of Guildford: I thank the Minister for her replies, which are inevitably complex because they relate to a complex set of amendments. I return to the issue of agency or contract staff employed at schools whose contract of employment is with a different employer. Regulations lay down terms for the governance of the school. School governors must follow them for employment of staff.

The distinction that we were trying to make in Amendments Nos. 143, 144 and 150 is between those who are under the direction of a head, who will have a contract of employment either with the LEA or with the governing body itself, and those who are under the direction of someone else, because they are employed by someone else. That is a useful distinction to make, which is why we tabled the amendments. I am not

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totally convinced by the Minister's answer on that point, and we shall need to return to the issue. I shall not press the amendments but we shall probably table them again on Report to tease out the issue a little further.

The Minister's answer about the other amendments was somewhat more reassuring. I take her point about the "may"s and "shall"s. We now have the policy statement, so we have some idea of the terms of the regulations. That is reassuring to the National Association of Head Teachers. One can understand why it is worried by the provision and it is important that it has clear guidance. That is why we tabled those amendments.

On the amendments relating to local education authorities and the appointment of heads, I take on board the point made by the right reverend Prelate the Bishop of Blackburn. Local authorities have an advisory role but perhaps not an appointment role. We tabled the amendments to make the point that that advisory role should be maintained. The Minister's reassurances answer that point. I shall not press those amendments.

4.15 p.m.

Baroness Blatch: It may save time if I return to my amendments now rather than wait until they are called in numerical order. I think that I was satisfied by one of the Minister's answers, but I shall read it to make sure. That concerned whether a community school, a maintained nursery school a community special school or a voluntary-controlled school could opt to become a foundation school, which would give it more freedom. But the Minister then negated that point by saying in relation to Amendments Nos. 153A and 153B that there was a good case for the provision in Schedule 2, Part 2, which states:

    "The arrangements for the staffing of the school shall be determined by the local education authority",

for foundation, voluntary-aided and foundation special schools. It continues:

    "Except with the consent of the authority, the governing body shall not . . . appoint any teacher to work at the school, or . . . dismiss any teacher at the school".

I am not sure that I totally understand the Minister's point, other than that it was important that local education authorities kept some control because those are state-funded schools. My understanding was that foundation, voluntary and voluntary-aided schools had the freedom to appoint their own staff. Indeed, that was the argument used by the Minister to argue against my point about community, voluntary-controlled, community special and maintained nursery schools. So I am in a quandary.

I am bamboozled by what the Minister said about those who work at a school otherwise than under a contract. People who work in schools are under some form of contract, whether they are sessional or part-time workers of some kind or full-time staff. That applies whether they are caretakers, cleaners, catering staff, teachers or head teachers. As the Minister rightly said, other people work in schools who are under

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contract—who may have a maintenance contract for technical equipment. Other people provide supply teachers to the school. All sorts of other advisory people may work in the school. It is right that the school has a view about how they carry out their work on school premises and how they relate to the children.

But my understanding of how that works legally is that the contract drawn up by the agency that provides staff or with the company that provides the service to the school includes within it the constraints that will govern how those people will work on the premises and that there is no need to overlay that with another set of regulations that operate outside the direct contract of a school with either the commercial company, the voluntary sector or the teacher supply agency. So I am not entirely convinced.

If the noble Baroness is right—and I question whether she is—that "otherwise than under a contract" applies to anyone not directly employed by the school, the wording should be "otherwise than those directly employed under contract by the school". They will all be under a contract of employment with some concern—either their own employer, their agency or whatever. The contract between a school and the employer or agency will be where all the constraints and regulations should be imposed.

So I am unhappy with some of the Minister's responses and, like the noble Baroness, Lady Sharp, I think that we shall return to the matter.

The Lord Bishop of Blackburn: On the other hand, I am relatively happy with the carefully crafted words of the Minister in response to my queries. I am grateful to the noble Baroness, Lady Sharp, for conceding the point about subsection (5)(e). I do not want anything that I said to be misunderstood as being against the proper partnership between the LEA and voluntary schools. I regard that as important, not least because of the educational advice that the LEA can provide on the appointment of head teachers and staff. I am grateful for the Minister's clarification, which I shall read carefully. Some complex issues have been raised by the noble Baronesses, Lady Blatch and Lady Sharp. I shall need to consider those before deciding how to proceed.

Baroness Sharp of Guildford: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144 to 147 not moved.]

Clause 34 agreed to.

Baroness Sharp of Guildford moved Amendment No. 148:

    After Clause 34, insert the following new clause—

( ) In section 81 of the School Standards and Framework Act 1998 (c. 31) (application of employment law during financial delegation) there is inserted—
"(3) No order may be made under this section so as to have the effect of denying to any person employed to work at any community, voluntary controlled, community special or

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maintained nursery school any of the rights he may have as an employee in respect of any power or duty imposed upon local education authorities by or under any enactment relating to employment as mentioned in subsection (1) and falling to be discharged by the authority in consequence of the operation of section 34(3) of the Education Act 2002 (staffing of community, voluntary controlled, community special and maintained nursery schools).
(4) Regulations made under this section shall not have effect so as to release a local education authority from any duty imposed upon it by or under any enactment relating to employment by virtue of its status as an employer consequent upon the operation of subsection (3).""

The noble Baroness said: This is another amendment that relates to employment rights. It purpose is to rectify a clear and serious anomaly in the law arising from local management of schools and its resulting three-party employment structure for teachers and other school staff. The problem was clearly identified in the courts in the case of Askew v the London Borough of Ealing. The amendment concerns the exercise of powers where a school ceases to exist as a separate entity on the occasion of a merger with another school or of its closure following a fresh start initiative.

LEAs employ teachers other than those who work in voluntary-aided and foundation schools in the legal sense that they are party to contracts of employment. The governing bodies of community and controlled schools, however, have certain employment powers conferred on them by statute. Those powers are defined in the Education (Modification of Enactments Relating to Employment) Order 1999, for which Section 81 of the School Standards and Framework Act 1998 makes continuing provision, as powers of appointment, suspension and dismissal.

As governing bodies of community and controlled schools are not employers, there is no transfer of staff from one employer to another in school mergers in which the schools merging are both community or controlled schools, even though the undertaking of each school is transferring from one governing body to another. The effect is the same as if there were no TUPE protections. Teachers are dismissed from their school by reason of redundancy on closure and can do nothing but hope that they will be selected for posts in the new school, all of which are deemed to be vacancies. The issue was taken up with the right honourable David Blunkett, when he was Secretary of State, after the decision in the Askew v. London Borough of Ealing case. He was advised that his powers under primary legislation did not extend to enabling him to make the necessary changes by amending the Education (Modification of Enactments Relating to Employment) Order 1999.

An amendment similar to this was tabled by my honourable friend Mr Phil Willis in Committee and on Report in the other place. In his response on Report, the Minister, Mr Stephen Timms, said:

    "First, the current arrangements for dismissals in community, voluntary controlled and community special schools, which are set out in schedule 16 to the School Standards and Framework Act 1998, require employing local education authorities to terminate the contracts of employees where their governing bodies have

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    made determinations that they should cease to work at their schools. That requirement ensures that the employing LEA does not have to consider, in line with normal employers' duties, alternative employment options elsewhere in the authority area, including inquiries with other schools or services, in attempting to avoid redundancies. I understand the concern about that arrangement.

    "The provisions of schedule 16 will be moved to staffing regulations under clause 34. We shall consult on the content of those regulations. In doing so, we shall give attention to the drafting of the staff dismissal provision, so that governing bodies will be required to give LEAs notice of impending redundancies. We shall make it clear that LEAs will be subject to the same duties as they are for their other staff and have to consider alternatives to redundancies before resorting to terminating contracts...

    "Secondly, I will give further thought to the doubt that now surrounds some transfers of staff to and from maintained schools, following the Askew judgment. That judgment was clear, but its terms and explanation raised some questions. The Bill may already clarify the employment position sufficiently to ease the problem, but I am prepared to consider it further".—[Official Report, Commons, 6/2/2002; col. 970.]

The amendment suggests a new formulation of the principle that might be more acceptable to the Government. However, we must know whether the Government will agree to use the opportunity to rectify the legal anomaly and put in the Bill a safeguard for teachers in such situations. Has the Minister thought further about the issue? I beg to move.

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