CONTENTS SECTION PAGE Appendices

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2 CONTENTS SECTION PAGE Introduction 3 Purpose 4 Definition of Redundancy 5 Constructive Dismissal 6 Unfair Dismissal 6 Statutory Framework 8 Avoiding Compulsory Redundancies 8 The Role of the Council 9 Consultation 10 Notice Requirements 12 Selection for Redundancy 12 Variation of Contracts of Employment 13 Termination of Temporary/Fixed Term Contracts of Employment 15 Planning for Redundancies 15 The Redundancy Procedure 17 Review of School Staffing Structures 20 School Closures/Amalgamations 21 Suitable Alternative Employment Redeployment 22 Conclusion 24 Appendices Appendix 1: Staffing Compact 25 Appendix 2: Redundancy Consultation and Notification 30 Appendix 3: Specimen Letters 36 Appendix 4: The Council s Selection Criteria for Redundancy 50 Appendix 5: Non renewal of One Year Fixed Term Temporary Contracts of Employment 62 Appendix 6: Redundancy Procedure Flowchart 64 Appendix 7: Governing Body Staffing Committees: Terms of Reference 65 Appendix 8: Procedure for the Staffing Disciplinary and Dismissal Committee Identification Meeting 66 Appendix 9: Procedure for the Staffing Disciplinary and Dismissal Committee Representation Hearing 67 Appendix 10: Procedure for the Staffing Disciplinary and Dismissal Appeals Committee Hearing 69 Appendix 11: Six Stage Action Plan for Amendments to School Staff Structures 71 2

3 1 INTRODUCTION 1.1 In the current economic climate the Council and schools will be reviewing their spending and when planning for change they need to ensure that it is done well. Whilst this paper essentially deals with redundancies that result from change it must be recognised from the outset that relying entirely on redundancy to achieve savings is a huge risk. The Council and schools will need to look at a wide range of organisational and human resource policies to preserve and develop services as well as minimising the loss of important skills and knowledge. 1.2 This paper sets out the main principles to be followed where governing bodies are planning for change as a result of: - budgetary problems; the need to review the school staff structure as a result of changes in the curriculum and/or organisational needs of the school; or a wider Council review of school places. 1.3 Where previously governing bodies reviewed staff levels they usually did this through either making staff redundant or by reducing their hours of work i.e. terminating or varying their contracts of employment. Whilst this will still essentially be the way such issues are dealt with it is important that governing bodies think more widely before contemplating redundancies by, for example: - collaborating with other schools within the cluster group in the provision of say the curriculum, administrative services, etc; identify the skills that will be required in the future and retrain staff in them; and/or identify employees with transferable skills who may be able to access other opportunities that become available. This could not only mean redeployment between schools but across other Councils, partner organisations and sectors. 1.4 The procedure detailed in this paper reflects the requirements of the recent advice from ACAS and the Local Government Employers Association in Redundancy: the 39 Steps and the: - Employment Rights Act 1996; School Standards and Framework Act 1998; Employment Act 2002 (Dispute Resolution) Regulations 2004; Employment Act 2008; The Amendment to the Staffing of Maintained Schools (Wales) Regulations 2006; and Equalities Act

4 1.5 The procedure is intended to offer help to Headteachers and governing bodies in dealing with what is a complex and difficult issue. Reviewing staff levels requires considerably more than simply complying with the basics of statutory employment law. Governing bodies are expected to operate within a well defined procedural framework and to follow specific legal provisions that underpin good practice when reviewing staff levels. The guidelines set out the main principles to be followed and they apply to all school based employees, including Headteachers, whether they are permanent, temporary or full or part time. 1.6 It is hoped that by following the advice given in this paper, complaints to an employment tribunal will be kept to a minimum. Governing bodies should be aware that where cases are referred to an employment tribunal this may be a time consuming and costly exercise particularly where the complaint is found to be justified and the Council is ordered to pay compensation to the employee. Governing bodies are strongly advised, therefore, to make full use of the advice available to them from Education Human Resources (HR). Governing bodies need to be aware that where advice is not sought or where it is sought but not followed any resulting successful compensation claim will have to be met from the school s budget. 1.7 Working with governing bodies, staff and trade unions through the Staffing Compact (included here as Appendix 1) the Council has an excellent record for managing redundancies particularly at a time when the number of pupils on roll in schools has been consistently falling requiring regular reviews of staff levels. In addition, schools and the Council are faced with many changes and there is a need to carry out continuous reviews in the desire to seek improvement. For example, the Council is continuously reviewing both primary and secondary education provision because of falling pupil rolls. This has already resulted in a number of school closures and amalgamations. The Council has also published its proposals under the 21 st Century Schools outline programme for Torfaen. This is a Welsh Assembly Government (WAG) requirement which must address surplus places. The Council has also presented a number of options to (WAG) with regard to educational provision for 14 to 19-year olds. In pursuing these objectives the Council seeks to minimise any hardship to staff by working in close partnership with them and their representatives. 2 PURPOSE 2.1 The purpose of this paper is to offer advice to schools where they are considering reducing staff levels. By following this advice schools will be able to ensure that reductions in staff levels will be dealt with in a fair, consistent and non discriminatory way and without undue delay. The guidelines will also refer to restructures, school closures and amalgamations where staff can also find themselves identified as at risk of redundancy. The advice is given with regard to present legislation and what is regarded as good practice. 4

5 2.2 The main principles behind these procedures are that: - they maintain a fair, transparent and consistent approach to identifying staff at risk of redundancy; all staff are treated with respect, justice and fairness; all redundancy matters will be treated in the strictest confidence throughout all stages of the process; job security is maintained wherever practicable; all meetings at the various stages of the redundancy procedure should be arranged as soon as possible to allow for due notice to be given and to allow the Council adequate time to seek suitable alternative employment for those staff who find themselves in this difficult position and to avoid the need for compulsory redundancies; members of staff should be given at least five working days notice in writing of the time and place of any hearing set up to hear the redundancy matter or any appeal that may follow; and at all stages of the procedure staff have the right to be represented by a work colleague or trade union representative. 2.3 Schools must try so far as possible to retain staff who are best able to meet the changing needs that will be placed upon them in the next few years. It is vital, therefore, that when considering restructuring or reviewing staff levels schools are able to meet the need to retain staff who: - are most able to share best practice, raise standards, work together effectively and build communities of professional practice; understand and have the knowledge to integrate best practice in the school and to develop effective multi agency and multi disciplinary practices with other schools and agencies; have the best skills to ensure that children do not become disaffected, disengaged or excluded; and are able to demonstrate that they are best motivated and can work with other colleagues to ensure that children are kept safe. 3 DEFINITION OF REDUNDANCY 3.1 Redundancy has two different considerations for the purposes of UK employment law. One consideration is to establish entitlement to redundancy payments and the other consideration is the right to be consulted. 5

6 3.2 For entitlement to redundancy payments, under the Employment Rights Act 1996, redundancy arises when employees are dismissed because the: - employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was so employed; employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed; requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish; or requirements of the business for the employees to carry out work of a particular kind, in the place they were so employed, has ceased or diminished or are expected to cease or diminish. 3.3 For the purposes of the right to be consulted, which applies when an employer proposes to make twenty or more employees redundant over ninety days or less, the law defines redundancy as: - dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related. 3.4 This definition might include, for example, a situation where dismissals are not related to the conduct or capability of the individuals but as part of a restructuring where there is no reduction in the overall numbers employed because the employer has recruited new staff. 3.5 When looking at staff levels Headteachers and governing bodies should consider the four key questions used by the Employment Tribunal: - whether or not there was a genuine redundancy situation as defined above; whether the employee s selection for redundancy was fair; whether there was adequate consultation with the employee on an individual basis about his/her potential redundancy; and whether the possibility of avoiding the redundancy by offering the employee alternative employment was properly considered. 4 CONSTRUCTIVE DISMISSAL 4.1 An employee can pursue a claim for constructive dismissal if s/he has been placed in a position so untenable that s/he has no alternative other than to resign. This will enable him/her to pursue a claim for unfair dismissal at an employment tribunal. Constructive dismissal may be applied to both voluntary and compulsory redundancies. 6

7 5 UNFAIR DISMISSAL 5.1 Dismissals for redundancy will normally be seen as fair so long as: - the redundancy is genuine - eg the governing body is not dismissing an incapable employee and claiming that the dismissal is on the grounds of redundancy and not incapability; the redundancy has been implemented in accordance with agreed procedures; staff have been consulted appropriately; the recognised trade unions have been consulted and those employees not in a trade union have been given equal opportunity in terms of consultation; or there is no suitable alternative employment available. 5.2 Dismissals for redundancy will normally be seen as unfair where they have occurred in contravention of the protection afforded by existing employment legislation. In addition, dismissals for redundancy may also be considered as unfair if the circumstances constituting the redundancy applied equally to one or more employees in the same school who held positions similar to that held by the dismissed employee and who have not been dismissed by the governing body, and either: - the reason or principal reason for which s/he was selected for dismissal was trade union related; or s/he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his or her case. 5.3 Redundancy during maternity leave will end the contractual obligations to both occupational maternity pay and the right to return to work. But an employee will be considered to have been unfairly dismissed or unfairly selected for redundancy if the reason for her dismissal or selection was that she was pregnant or for any other reason connected with her pregnancy. The exceptions to this rule are: - at the effective date of termination she is or will have become, because of her pregnancy, incapable of adequately doing her work; or because of her pregnancy, she cannot or will not be able to continue after that date to do that work without contravention of a duty or restriction contained in an enactment. 7

8 6 STATUTORY FRAMEWORK 6.1 The relevant piece of legislation is the Employment Rights Act When declaring redundancies governing bodies must ensure that they work within the provisions of the Act. 6.2 The School Standards and Framework Act 1998 followed on from previous education legislation by reinforcing the provision for school governing bodies to appoint and dismiss staff. This is also re emphasised in the Staffing of Maintained Schools (Wales) Regulations The contract of employment, however, is between the Council and the employee for community schools. For voluntary aided schools the contract of employment is between the governing body and the employee. In both Community and Voluntary Aided schools the governing body have separate and particular responsibility for the appointment and management of staff. 6.3 There are also the national conditions of service for each type of employee, namely the: - National Conditions of Service for School Teachers in England and Wales (the Burgundy Book); and National Conditions of Service for all Local Authority Employees (the Green Book). 6.4 In addition, the annual School Teachers Pay and Conditions Document is also a useful reference point for teaching staff. 7 AVOIDING COMPULSORY REDUNDANCIES 7.1 Governing bodies are responsible for deciding the size of and most efficient use of the school workforce. By carefully managing the workforce, disruption to the school s performance can be minimised and job losses can be avoided or reduced. Also, the process of change can be eased. 7.2 Effective workforce planning can help to determine existing and future staffing needs. In turn, this can lead to an improvement in job security for staff and to the avoidance of short term solutions that are inconsistent with longer term needs. 7.3 Before declaring any employee as dismissed through redundancy, however, a governing body must look very carefully at each potential redundancy and apply the following questions: - has the job in question disappeared? if so (and it is clear that a particular employee has carried out that job), does it mean that s/he is wholly unemployed? 8

9 if s/he is only partly employed as a result of the job loss, what scope is there for adding other duties to bring the person back to full employment? can the governing body offer suitable alternative employment? is there a member of staff on a temporary contract of employment of less than one year who could leave in preference to a long serving permanent employee in accordance with the agreed selection criteria? is there a member of staff who wishes to work part time? is it possible to restrict recruitment? can the employee be retrained to work elsewhere in the school? is there a member of staff of 55 years of age or more who is interested and eligible to be considered for voluntary early retirement? are there employees who wish to leave voluntarily? has the Council been informed? have all the employees been consulted? have the trade unions been consulted? 7.4 One method of avoiding compulsory redundancies is to seek volunteers. Where volunteers do come forward governing bodies and the Council have discretion in choosing whether to accept or refuse the voluntary redundancy. It could be that key skills could be lost or the cost of the redundancy could be prohibitively high. The decision should, therefore, rest on a sound business case that will include a skills assessment based on the needs of the school. 8 THE ROLE OF THE COUNCIL 8.1 Schools must inform Education (HR) of a potential redundancy at an early stage for the following reasons: - the Council is the compensatory body in cases of voluntary and compulsory redundancies and must be satisfied that it is a bona-fide case and that all options have been explored before giving notice of redundancy; and the Council may be able to find suitable alternative employment for those staff whose contracts of employment are terminated at the school and thus avoid compulsory redundancies. 8.2 The Council will fund any resulting redundancy payment where the redundancy(s) in a school are as a result of: - 9

10 budgetary problems because of falling numbers on roll; or a wider Council review of school places. 8.3 The school will be expected to make a contribution to termination costs where the redundancy(s) arises from a review of school staff structures that are not as a result of the issues referenced in paragraph (8.2). 8.4 Early contact with the Council will serve a number of purposes as follows: - the Council can advise of possible alternative courses of action sooner rather than later; the governing body will be informed that the Council will bear the cost of redundancy or other compensation; and the earlier that consultation with the Council takes place the sooner some resolution is likely and this will help in counselling the member(s) of staff concerned as to their position. 9 CONSULTATION 9.1 Full and meaningful consultation must take place throughout all stages of the redundancy procedure. This will do much to allay unjustified fears and suspicions and allow staff, their trade union or employee representatives to contribute views and ideas. Governing bodies should consult with staff and their representatives at the outset of the redundancy procedure even if at that stage there are no firm proposals. Staff should be told that they will be kept fully informed as soon as there are firmer plans. Consultation should be with: - trade unions and employee representatives; staff collectively; and individual employees who are at risk of redundancy. Trade Unions and Employee Representatives 9.2 The Council recognises the following trade unions for consultation purposes: - School teachers: Support staff: NAHT, ASCL, NUT, NASUWT, ATL and UCAC UNISON and GMB 9.3 Failure to consult with trade unions in respect of proposed redundancies could lead to claims for compensation for unfair dismissal. Where governing bodies are planning redundancies they must consult with all the trade unions listed in paragraph (9.2) at the earliest opportunity. Details of the consultation requirements and the addresses of the local secretaries are given in Appendix 2. Governing bodies should also inform any trade union representatives in the school. 9.4 Consultation with trade unions on proposed redundancies should take place at the earliest convenient opportunity because where a trade union is not notified 10

11 in time it may still make a claim for compensation. Consultation with trade unions should, therefore, commence immediately after the school governing body has resolved that staffing levels within the school must be reduced. 9.5 When the governing body has informed the trade unions of its plans and received a response it must consider the points made and either accept or give reasons for rejecting any of them. Specimen letters notifying trade unions of proposed redundancies or variations in contracts of employment are given in Appendix Where a governing body is considering a staff restructure in the school it must consult as described in paragraph (9.1) and this will allow staff, their trade union or employee representatives to contribute views and ideas. 9.7 Where there are school closures/amalgamations that involve the publication of statutory notices trade unions will be considered as statutory consultees. Staff (Collectively and Individually) 9.8 The school based employees that these guidelines apply to are: - Teaching: including Headteachers, Deputy Headteachers, Assistant Headteachers and classroom teachers. Support staff: including administrative staff, catering, cleaning, teaching assistants, nursery nurses, caretakers, premises managers, lunch time supervisors, school nurses and transport escorts. 9.9 Where the governing body has decided to restructure or reduce staffing levels the Headteacher should be asked to consult with employees at the earliest convenient opportunity both on a whole group basis and where required with individuals. This will include employees who are on maternity leave or sick leave or on secondment at the time. Staff at risk of redundancy must be consulted individually in addition to any obligations for collective consultation. The staff concerned should be fully advised of the: - manner in which their positions may be affected; way in which they may be selected for redundancy; and way in which the redundancies are to be carried out (including the period of time over which it is proposed the redundancies be implemented). Headteachers should ask Education Human Resources (HR) to provide redundancy figures for staff at risk of redundancy Specimen letters to staff informing them of the governors decisions are given in Appendix 3. 11

12 9.11 Where employees are at risk of redundancy, support and advice can be given to individuals from Human Resources and Headteachers should contact Education Human Resources (HR) 10 NOTICE REQUIREMENTS 10.1 The national conditions of service documents set out time scales for notice and termination of employment. There is also a requirement to give notice of redundancy, where applicable, based on length of continuous service and this may mean up to twelve weeks being required in many cases. Where a governing body terminates a contract of employment without giving the correct period of notice a claim may be brought against the governing body for wrongful or unfair dismissal The notice requirements for each category of employee are given in their respective national conditions of service documents. They are included here in Appendix 2. Employees 10.3 The minimum period of notice for a teacher to terminate his/her employment is the same as for the school given in Appendix 2. For support staff, unless otherwise stated in the contract of employment, the minimum period of notice to terminate their employment is one pay period. 11 SELECTION FOR REDUNDANCY 11.1 It is important that governing bodies give careful consideration on how to select employees for redundancy. Section (7) provides details of a number of strategies that governing bodies can use to avoid compulsory redundancies and these should be considered first. Where these strategies have been exhausted, however, governing bodies will need to identify the pool of staff from whom those to be made redundant will be drawn When identifying the pool of staff governing bodies must be able to demonstrate that they have acted reasonably. The Employment Tribunal will usually consider the following: - whether other groups of staff are doing similar work to the group from which selections are to be made. If so, selection should not be restricted only to that group; whether the employee s inclusion in the pool is consistent with his/her previous position; any background facts which may show that the selection pool was defined solely for the purposes of weeding out a particular employee; and/or 12

13 whether jobs are interchangeable. If so, governing bodies may be expected to include in the pool those employees whose work is interchangeable. Selection Criteria for Redundancy 11.3 The criteria for selecting members of staff for redundancy must, so far as possible, be objective. In addition, the criteria used should not inherently discriminate against employees, either directly or indirectly, on the grounds prohibited by the Equalities Act 2010 which covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation Details of the Council s selection criteria for redundancy are given in Appendix 4. Before applying the selection criteria for redundancy, however, the governing body must consider the requirements of paragraph (7.3) The selection criteria for redundancy must be applied in a reasonable, fair and objective manner. The governing body must be able to demonstrate that a particular employee has been compared to others who may have been identified and selected fairly on the basis of the agreed criteria. It is important that the selection is capable of substantiation preferably with written documentation because employees in the selection pool will be able to see their scores and challenge them. It is recommended, therefore, that scoring systems remain anonymous throughout the process Even with using objective criteria care must be taken to avoid applying them in a way that could be discriminatory. The criteria used should be as objective as possible and not rest on personal opinions Governors must ensure that the individuals on the Staffing Committees who select staff for redundancy are properly capable of assessing the individuals in the pool for redundancy and that they have been given guidance on applying the selection criteria. 12 VARIATION OF CONTRACTS OF EMPLOYMENT 12.1 The contract of employment is binding on both parties. It is unlawful for one party to vary the terms and conditions in the contract without the agreement of the other. This applies whether the contract is oral, written or implied. Otherwise the employee may be entitled to sue for breach of contract or resign and claim constructive dismissal. Either the governing body or the employee may want to vary the contract of employment but for the purpose of these guidelines reference is only made to where the governing body wishes to do this Where the governing body wants to vary the contract of employment it must ensure that:- 13

14 the changes are justified by the management, organisation, curricular, pastoral and/or financial needs of the school; the selection of individual employees for such variation is made fairly; full consultation takes place with the employee and his/her trade union representative; and due notice of the change is given Whilst there are a number of ways to vary a contract of employment the focus here is on where there is a proposal to reduce the hours of work. Where governing bodies want to reduce the hours of work of an employee they must: - consult the employee and his/her representative; explain the reason for the proposed change; and listen to alternative ideas Where agreement is reached details of the change should be submitted on a Payroll Amendment Form to Education (HR) who will issue an appropriate amendment to the employee s written statement of particulars or letter confirming the variation Where an employee finds that a variation in his/her contract of employment is not satisfactory but nevertheless continues to work under the new terms and conditions without making his/her objections known to the school s/he could be deemed after a reasonable time to have implicitly accepted it and the variation would then become incorporated into the contract of employment If agreement cannot be secured, the change cannot be imposed unilaterally. If the employee has one year or more continuous service this would be unlawful. After two years continuous service they will be entitled to a redundancy payment. Governing bodies do, however, have the option of effecting dismissal procedures in respect of the existing contract of employment and offering continuous employment on a new contract which includes the required variation(s) in terms and/or conditions of service. Dismissal in this manner is a widely used mechanism for re issuing contracts of employment or changing the terms and conditions of employment. The dismissal in these circumstances may be on grounds of redundancy if there is a significant reduction in the requirement for work or for some other substantial reason (eg, change in job description or different terms and conditions, such as a lower grading or loss of holiday pay) Where governing bodies are planning to vary the terms and conditions of an employee s contract of employment they should follow the procedure detailed in (Sections 14 and 15) in order to avoid claims for unfair dismissal to an employment tribunal. The decision of the governing body would then only be regarded as unfair if there was no fair reason for it or they had acted 14

15 unreasonably. Education (HR) must be involved in all cases that may require a variation to be negotiated at the earliest stage. 13 TERMINATION OF TEMPORARY/FIXED TERM CONTRACTS OF EMPLOYMENT 13.1 Schools will be aware that staff on temporary contracts of employment with two or more years continuous service will be treated as permanent under the procedures given in (Section 15). Education (HR) has previously issued advice regarding the termination of temporary/fixed term contracts of employment. This is reproduced here in Appendix Members of staff on fixed term contracts of employment have a right not to be discriminated against. Governing bodies will need to ensure, therefore, that employees appointed on fixed term contracts know right from the beginning of their employment the reasons why they are being engaged. 14 PLANNING FOR REDUNDANCIES 14.1 In the context of redundancy a dismissal occurs if: - the contract of employment is terminated with or without notice; the individual is on a fixed term contract and the fixed term contract expires without being reviewed; or because of a repudiatory breach of contract by the employer the employee resigns with or without notice Governing bodies must also be aware of the timescales when considering redundancies. Generally speaking the operative date is usually 31 August and so it is important, therefore, to complete the process before the 31 May so that the notice requirements will be complied with. This will also allow sufficient time for the Council to seek suitable alternative employment. The flowchart given in Appendix 6 details the process to be followed where redundancies apply from 31 August When, for budgetary or any other reason(s), there is likely to be a reduction in the requirement for work leading to terminations or variations of employment contracts (whether full or part - time) it is vital that management, organisational, curriculum, pastoral and financial needs are considered and decided sufficiently far in advance to allow enough time for implementation of the redundancy procedure should this prove necessary. This will help reduce uncertainty amongst employees. Headteachers should refer to the Council s Change Management Guidelines and procedures to follow for redundancy given in (Section 16). By taking account of the consultation requirements, length of the procedure and statutory/contractual notice provisions the following timescales are realistic:- 15

16 Effective date of contract variation/termination For 31 August For 31 December For 30 April Procedure needs to be started (AT THE LATEST) by End of February End of May End of October Procedure needs to be completed (AT THE LATEST) by 31 May 31 October* 28 February* * There is also a requirement to give notice of redundancy, where applicable. based on length of service and this may mean up to 12 weeks being required in many cases Details of the notice requirements are given in (Section 10). Failure to follow these procedures will make the resultant dismissal(s) automatically unfair. Where a dismissed employee considers the governing body s actions to be unfair s/he will be entitled to make a complaint of unfair dismissal to an employment tribunal provided s/he has completed at least one year s continuous service It is suggested that governing bodies should follow this sequence: - give as much warning as possible to staff and trade unions of its intentions; ensure that its procedures and committees are in place. All governing bodies should agree the membership of their Staff Discipline and Dismissal Committee (SD&DC) and Staff Discipline and Dismissal Appeals Committee (SD&DAC) at their annual general meeting held early in the academic year; agree the criteria to be used in selecting employees for redundancy in consultation with the relevant trade unions. The Council s agreed selection criteria for redundancy is included here in Appendix 4; consider any representation made by the trade unions and staff; and employ where possible all the strategies listed in paragraph (7.3) to help avoid compulsory redundancies. In addition, governing bodies should consider such options as: - devising an effective system for the planning of the school s workforce requirements eg, through the school strategic plan and staff structure; internal reorganisation eg, internal redeployment; reducing hours; retraining employees so that they meet the requirements of vacant posts; restrictions on recruitment; and 16

17 use of temporary short term, part time contracts of employment Schools will have curriculum and staffing plans in place. Any long term proposals to reduce staffing levels should be made known to the Council who will seek suitable alternative employment for the staff identified as at risk of redundancy. In order to give the Council sufficient time to seek an alternative placement, governing bodies should complete the redundancy process and notify Education (HR) of their decision no later than twelve weeks prior to the date of termination of employment. 15 THE REDUNDANCY PROCEDURE 15.1 School governing bodies may need to consider reducing staffing levels either when they have: - reviewed the school s budget; or considered the school s staffing levels and matched them with, for example, the school s curriculum requirements The flowchart given in Appendix 6 is a simple illustration of the redundancy process that starts with the governing body establishing the (SD&DC) and (SD&DAC) at its annual general meeting early in the academic year. The terms of reference for these committees are given in Appendix The full governing body will determine in consultation with staff, trade unions and the Council the selection criteria by which the (SD&DC) will assess and identify individuals for redundancy (Section 11). Where the governing body propose to change the selection criteria for redundancy as given in Appendix 4 they must not do so at a time when redundancies are being considered. They should only do so at a time when they can give careful consideration to the long term objectives of the school Where reductions are required in teaching staff the school s staff structure and curriculum requirements will obviously be major considerations in establishing selection criteria for identifying redundancies. It is suggested, therefore, that the Headteacher remind the (SD&DC) of the school staff structure and produce a full audit of the curriculum so that the categories of staff to be considered for redundancy can be clearly identified. Identification of Individual Members of Staff 15.5 The (SD&DC) at its first meeting will identify the categories of staff from which the selection pool for redundancy will be identified. The (SD&DC) will put in place arrangements for the assessment centre/skills audit (see 15.8). The Headteacher will provide as much information as possible to help the (SD&DC) make its decision. This will include details of: - the projected school budget; special educational needs provision; the present school staff structure; 17

18 the proposed school staff structure; curriculum responsibilities; other staff responsibilities; and any recent Estyn inspection and/or Council review A model agenda for the first meeting of the (SD&DC) is provided here in Appendix 8. When the (SD&DC) has made its decision the Headteacher must as soon as possible thereafter inform those employees at risk of redundancy that the selection will be from their category of staff and that the method of selection will be through an assessment centre/skills audit approach. This will be done both verbally and in writing setting out the reasons for the redundancies. Details of the arrangements for the assessment centre/skills audit should also be provided. Assessment Centre/Skills Audit 15.7 The assessment centre/skills audit will be run by the (SD&DC) who will be supported by the Headteacher, an adviser from the Council and Education (HR). The assessment centre/skills audit should be designed to test the knowledge, experience and practical and inter-active skills of the employees identified as at risk of redundancy. Where possible the activities of the assessment centre/skills audit should be completed anonymously. The areas to be tested will be those as given in paragraph (2.3). The objective will be to ensure that the school retains those employees who best suit its needs as identified in the school strategic plan Assessment centres include a range of activities designed to test an employee s knowledge, experience, skills and personal attributes so as to ensure that the school is able to retain those employees most able to fit the requirements as identified in paragraph (2.3). However, it is for the (SD&DC) to determine which activities will be used in order to test the requirements of the revised person specification. The purpose of this exercise is not to put employees through unnecessary tests and hoops. For this reason, lesson observations should not be used as part of the assessment centre because whilst they are a key part of the appointment process where present staff are concerned they are used for development purposes and it is considered essential that this should remain their primary purpose. The skills audit, however, is an essential part of the assessment centre. Whilst the (SD&DC) will decide which requirements will be tested by a skills audit it will be completed by the Headteacher and the employee prior to the other assessment centre activities. Models of an assessment centre and skills audit are given in Appendix 4 which also includes a selection grid to help the (SD&DC) chose how each of the requirements of the person specification will be tested Following completion of the assessment centre/skills audit the Headteacher will both verbally and in writing: - inform the individual employee(s) that they have been selected for redundancy and that they have the right to make representation to the 18

19 (SD&DC). If staff wish to make representation they should let the Headteacher know within five working days of being advised of the decision; inform the remaining employees within the pool and record any representations that they wish to make); and inform the trade union representatives of the decision of the (SD&DC) Specimen letters for individual staff and trade unions are provided in Appendix 3. The Right of Representation Where individual employees exercise their right of representation the (SD&DC) will hear the case with an officer from Education (HR) attending to give advice. Individual staff will have the right to be accompanied by a trade union representative or a work colleague. The Headteacher will present the outcome of the assessment centre/skills audit with the employee given the opportunity to respond. The (SD&DC) must consider the representations made and if it rejects them state the reasons. Such a meeting must follow the rules of natural justice and the agreed procedure to be followed is given in Appendix Where the (SD&DC) rejects the representations made by the employee the Chair of the Committee should announce the decision verbally at the end of the hearing and offer the right of appeal. The Headteacher should then confirm the decision in writing and advise the member of staff that if they wish to appeal they should do so within five working days of receipt of the letter. Specimen letters are provided in Appendix 3. The Right of Appeal Where a member of staff wishes to appeal against the decision of the (SD&DC), the (SD&DAC) will rehear the case (as in 15.11) unless there is agreement by both parties that the appellant has submitted grounds for the appeal as follows: - the (SD&DC) did not consider the full facts of the case; new evidence has come to light rendering the decision of the (SD&DC) unsafe ; and there was a procedural failure where the agreed procedure was either not used or not followed properly For the appeal hearing the Headteacher will report on the outcome of the assessment centre/skills audit. The procedure to be followed by the (SD&DAC) is given in Appendix

20 15.15 The decision of the (SD&DAC) is binding and cannot be reversed by the full governing body. The Headteacher must immediately inform the Council of the individual(s) declared as redundant or who have had their contracts of employment varied at the school so that the Council can seek suitable alternative employment. It is good practice, however, to keep Education (HR) informed throughout all stages of the process with a representative being invited to attend all meetings when discussing and making decisions on these issues. Such officers are able to give expert advice that will help the committees of the governing body make fair decisions. The officers will also be able to advise governors where it is likely that their decisions may be considered unfair before an employment tribunal. 16 REVIEW OF SCHOOL STAFFING STRUCTURES 16.1 School governing bodies have a duty to review the school s staffing structure. The reviews must be conducted with a view to ensuring that the management and deployment of all staff and the allocation of responsibilities and duties is effective and focused on teaching and learning to raise standards. All staff and recognised trade unions representatives must be consulted during the review. The previously produced six stage action plan is reproduced here in Appendix The requirements of the school strategic plan will inform any review of the school staff structure. The staff structure should provide the capacity to deliver the schools teaching and learning priorities. Each school will need to look at and tailor its staff structure to suit its own particular needs and circumstances. Any review should take account of:- the priorities and vision set out in the school strategic plan because this will be based on findings from recent Estyn inspections, school self evaluations and staff views on priorities for improvement; the extent to which the contractual changes emanating from the National Agreement on Raising Standards and Tackling Workload have been implemented and the strategies that have been put in place to enable the school to take forward wider workforce remodelling; and the fact that the review encompasses all roles and responsibilities throughout the school Where a governing body is contemplating reviewing the school staff structure it needs to write to all staff and the recognised trade unions to advise them of: - the purpose and scope of the review; to whom queries about the process should be sent; the timescales so that the governing body can: - consider and approve the draft proposed staff structure and implementation plan for consultation; 20

21 receive the feedback from the consultation and to approve a revised or final version of the structure and implementation plan; and give further consideration to the staff structure if it has been necessary to undertake significant revisions; the dates by which any written responses to the consultation exercise will be required. Staff and trade unions should be given a minimum of four weeks to comment on the draft proposals and implementation plan; and the arrangements for any meetings to be held with staff and trade unions during the review Where any review of the school s staff structure is being contemplated that could result in staff redundancies it is important that the above process is completed before the redundancy process commences. A governing body will be continually reviewing its staff structure to ensure that it continues to provide the capacity to deliver on the requirements of the school s strategic plan. This suggests, therefore, that the staff structure should be reviewed on at least a three yearly basis. Where a school is experiencing falling rolls this may be more frequent Where the Council has established a new school the temporary governing body will be required to design a staff structure. This will follow the process outlined in paragraphs (16.1 to 16.4) above with the staff structure in place prior to the new school opening. 17 SCHOOL CLOSURES/AMALGAMATIONS 17.1 Where the Council is proposing to close or amalgamate schools it will consult with staff, governing bodies, parents and other interested parties. The trade unions will be continuously consulted on the proposals through the Primary and Secondary Joint Consultative Committee (PSJCC) and they will also be recognised as statutory consultees. The pool of staff at risk of redundancy will be those who have one year or more service at the date of the closure/amalgamation of the school Governing bodies of schools facing closure/amalgamation can help safeguard the employment of existing staff by: - filling any vacancies which arise within the school on a fixed term basis only until the point of closure; and ensuring that only those temporary employees with more than one year s continuing local government service are included in the pool for consideration for new posts in the new school (because this may jeopardise opportunities available to staff with more than one year s service). 21

22 17.3 Headteachers and Deputy Headteachers of schools that are facing closure/amalgamation cannot be safeguarded in the same way as other staff because their posts will be redundant. The Amendment of the Staffing of Maintained Schools (Wales) Regulations 2006, however, provides for limited circumstances in which the temporary governing body has the choice whether or not to advertise. The circumstances when it may exercise that choice are when a Headteacher or Deputy Headteacher vacancy arises in the following situations: - the vacancy arises in a new or amalgamated school formed from immediately pre-existing schools as a result of statutory proposals; and that for each Headteacher or Deputy Headteacher post available in the new or amalgamated school there is at least one substantive post holder from the pre-existing schools available for continued employment in that role in the new school If there are no eligible candidates a temporary governing body will still have to advertise nationally throughout England and Wales as required by the current Staffing Regulations. However, if other statutory proposal(s) come into effect at the same time, creating or amalgamating other school(s) maintained by the same local authority, a temporary governing body which has no eligible candidates of its own may consider applicants (without national advertisement) who are eligible for such posts in the other newly formed or amalgamated schools The Council will still have a statutory duty to seek suitable alternative employment for redundant Headteachers and Deputy Headteachers. It is recognised, however, that initially this may only be on a temporary basis because, unless the circumstances as stated in paragraphs (17.3) and (17.4) apply, vacant posts of Headteacher and Deputy Headteacher in schools not subject to statutory proposals must still be advertised nationally Where there is a school closure/amalgamation the existing governing body will be responsible for making staff redundant should the need arise and will follow the same procedures detailed in these guidelines (see Sections 14 and 15) as they would otherwise have done if the school was not closing/amalgamating. The Council will also seek suitable alternative employment for such staff. 18 SUITABLE ALTERNATIVE EMPLOYMENT REDEPLOYMENT 18.1 Trade unions and governing bodies in Torfaen will be aware of the excellent reputation that the Council has in finding suitable alternative employment for those staff identified as at risk of redundancy by their school. The Council could not achieve this without the support of Headteachers and governing bodies because with Local Management of Schools it can only ask schools to give consideration to a nominated person where there is a match with the job description and person specification. 22

23 18.2 Prior to dismissing members of staff on the ground of redundancy the governing body and the Council should consider whether there is any alternative employment that it can offer redundant employees. This obligation extends to all members of staff within the pool for selection. The Council can nominate for redeployment any person who appears to it to be qualified to fill the post. The Council will recommend to governing bodies that they give prior consideration to redeployed members of staff who can appoint the person concerned but they are not bound to do so. Where they do not appoint the Council nominee the governing body will be asked to give a written reason so that feedback can be given to the unsuccessful candidate To seek suitable alternative employment for staff is a time consuming exercise and, therefore, the point about the timing of redundancies made above is crucial. By notifying Education (HR) early there will be more time to seek suitable alternative employment for the member of staff concerned and hopefully avoid the need for compulsory redundancy Where there is a need to seek suitable alternative employment for a member of staff identified as at risk of redundancy in a school Education (HR) will: - scrutinise all vacancies (full or part time). Whether jobs have been advertised or not Education (HR) will ask governing bodies to give prior consideration to at risk staff. Prior consideration means that where at risk staff meet the job description and person specification for the vacant post their application should be considered before any other; look for suitable matches in other schools where, for example, staff wish to go on voluntary early retirement; scrutinise all positions filled on a temporary basis of less than one year eg, fixed term contracts, secondments, sickness absence, maternity leave, etc; and seek suitable opportunities in other service areas of the Council where appropriate A woman on maternity leave who is under notice of dismissal on the grounds of redundancy must be offered any suitable alternative vacancy that is available. To rely on one of the exceptions given in paragraph (5.3) the school or Council must have offered the pregnant employee suitable alternative employment or be able to show that no such employment is available There may be occasions where a member of staff is offered suitable alternative employment and s/he unreasonably refuses to accept the post. Where this occurs the Council will have no liability to make a redundancy payment. However, full consultation will be held with the member of staff because the test of unreasonableness will depend on whether the terms and conditions of the alternative employment mirror those enjoyed in the present or previous post as well as the employee s personal reasons for not wanting to accept the role. 23