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Dear Stephen - who is my employer?

Discussion in 'Governors' started by crumblebucket, May 3, 2012.

  1. I have received a letter from the CoG (as have all staff - teaching and non-teaching) relating to federation, which our primary school has recently undergone. It states that I am now "an employee of the Federation governors". Surely this cannot be correct? If so, the governors must be responsible for my salary, pension etc, which, as far as I know, are still the responsibility of my County Council. I suspect this is some sort of error in the letter but would like your opinion before I take it up with our staff Governor.
    Thanks for your input.
     
  2. I have received a letter from the CoG (as have all staff - teaching and non-teaching) relating to federation, which our primary school has recently undergone. It states that I am now "an employee of the Federation governors". Surely this cannot be correct? If so, the governors must be responsible for my salary, pension etc, which, as far as I know, are still the responsibility of my County Council. I suspect this is some sort of error in the letter but would like your opinion before I take it up with our staff Governor.
    Thanks for your input.
     
  3. Rott Weiler

    Rott Weiler Star commenter Forum guide

    In Community and VC schools staff are employed by the Local Authority (but governors exercise most employer responsibilities on behalf of the LA) and in VA/Foundation schools staff are employed by the governing body. What type of school are you? Schools usually contract out payroll servcies ie the actual paying over of your salary to you. Any type of school can contract this to the council if they want to. That doesn't change who your employer is.
     
  4. Thanks for your reply RW - we are a community school. Spoke to the staff governor today who thought that the letter probably meant that the Govs are responsible for employing the staff - ie appointing them - and are not actually the employer. Just badly worded!
    Thanks again.
     
  5. Your employer will depend not on whether you are in a federation, but the type of school you are in. In community and voluntary controlled schools the local authority is the employer, but the governing body exercises employer responsibilities. In foundation and voluntary aided schools the governing body is indeed the employer.
    Stephen Adamson
     
  6. Thank you Stephen.
     
  7. I know this thread is now quite old but is relevant to this query. In a community school where,according to Stephen's reply above, the LA is the employer and the Governors exercising employer responsibilities, who would be cited as the employer in an unfair dismissal case at an employment tribunal?
     
  8. Rott Weiler

    Rott Weiler Star commenter Forum guide

    The LA would be the respondent and they would call the chair of governors and/or the head as their witnesses where required.
     
  9. Thanks for that, RW. Interestingly I have been told differently by a union rep who seems to think that governors are now employers and they buy in all LA services. Everything I have seen online negates this view though it's hard to find a bald statement of the facts on the issue from a government source. It's a pretty important detail to get right as one would not wish to cite the wrong body as the employer.
     
  10. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Frankly your union rep dopesn't seem to know what they are talking about but anyway it's not a significant problem. Name both the LA and the governing body on the E1 and whichever of them isn't the right party will simply apply to the Tribunal to be struck out as a Respondent.
     
  11. Good, that's useful to know, thanks. The rep also seems to think that any settlement would be paid by the school - I think it would be the LA, for the same reason as before i.e. that they are the employer. Offputting to have a rep that seems to not know the facts.
     
  12. As far as the settlement (if you get one) goes the payee will be the LA if the school has followed their advice and guidance in the case. If not, then they could well be on their own!
     
  13. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Not necessarily blackdog, despite what s37 of the 2002 Education Act appears to say. This has been a contentious issue in my LA and we took legal advice and tried (unsuccessfully!) to get the DfE to give a firm view. Although it's correct that the LA has to pay any award it doesn't follow that the LA can't charge some or all of it against the school's delegated budget even if the school has followed LA advice. Our LA asserts that the funding to cover Tribunal awards is delegated to school's in the LA's funding formula, and that is indeed what their funding formula says. As far as we could discover this is legal and does not breach s37 (5). Who pays in this case would need further research specific to the LA concerned.
    Even if the LA pays the award they may say that their legal costs - which could be as much again - are payable by the school, arguing that it is not a cost within the meaning of s37.
     
  14. Twinkletoes79

    Twinkletoes79 New commenter

    Dear Stephen,

    I work in a maintained community school . My council and school are both telling me the school are my employer. However the DFE and local union rep are saying it is the school. Can you help?

    Best wishes
    Vicky


    QUOTE="Stephen_Adamson, post: 7496296, member: 2160101"]Your employer will depend not on whether you are in a federation, but the type of school you are in. In community and voluntary controlled schools the local authority is the employer, but the governing body exercises employer responsibilities. In foundation and voluntary aided schools the governing body is indeed the employer.
    Stephen Adamson[/QUOTE]
     
  15. Twinkletoes79

    Twinkletoes79 New commenter

    Sorry DFE and union are saying it is the council.

    QUOTE="Twinkletoes79, post: 12628917, member: 736697"]Dear Stephen,

    I work in a maintained community school . My council and school are both telling me the school are my employer. However the DFE and local union rep are saying it is the school. Can you help?

    Best wishes
    Vicky


    QUOTE="Stephen_Adamson, post: 7496296, member: 2160101"]Your employer will depend not on whether you are in a federation, but the type of school you are in. In community and voluntary controlled schools the local authority is the employer, but the governing body exercises employer responsibilities. In foundation and voluntary aided schools the governing body is indeed the employer.
    Stephen Adamson[/QUOTE][/QUOTE]
     
  16. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Stephen Adamson (who was Chair of the National Governors Association) hasn't posted since he left NGA in 2013 so is unlikely to reply to this.

    However the advice he gave in 2012 in post #5 remains correct. In an LA maintained Community school in England the LA is the contractual employer (ie your contract of employment will show your employer as the LA) but nearly all employment functions are, by law, carried out by the governing body on behalf of the LA - hiring, firing, discipline, grievance, pay etc. So the DFE and your union are correct. Maybe the LA/school don't understand the difference between contractual employer and who carries out employment functions? How senior was the LA person who told you this, were they an HR specialist?

    Why do you ask? What's happened?
     
  17. Twinkletoes79

    Twinkletoes79 New commenter

    Hi Rottweiler...
    Thank you for your reply. So, I am on mat leave and been told my employer (who I am being told is the school) won't pay childcare vouchers for me whilst on SMP and from month 9-12.

    I understand the case Peninsula vs Donaldson in 2016 which said employers have the right to refuse to pay this now. However, my problem is that I believe the Council are my contractual employer and their policy is that they pay their employees childcare vouchers whilst on SMP. They are only refusing to pay mine because my school have outsourced payroll to an external provider. Surely that doesn't change who my employer is?
    I feel there is a real lack of equality here. I get that school have certain rights such as deciding on pay progression through monitoring performance etc but this is a matter of maternity leave equality and should be the same for everyone in an organisation.

    The person at the LA was a payroll officer. I was told they have a pot of money to cover this cost. I get the feeling they're miffed some schools aren't buying in their payroll services anymore so are refusing to cover this cost for those schools.


     
  18. mbee1

    mbee1 New commenter

    The fact that the school have outsourced payroll doesn't change who your employer is. Payroll is one of the "Services for Schools" that can be bought in from the LA or from anywhere else determined by cost. If you're in a Community school the LA is your employer and it may be worthwhile speaking to someone in HR. Also check your Contract of Employment which may say something specific about benefits in kind and payments made under salary sacrifice whilst in SMP, SPP etc.
    I suspect they can't refuse to pay just because the school have outsourced the payroll.
     
  19. Rott Weiler

    Rott Weiler Star commenter Forum guide

    I wouldn't rely on a payroll officer to advise me on employment contract law. They are usually admin people and payroll is an admin service that schools can buy in from wherever they want, just as they can the cleaning, etc. As @mbee1 says, changing your payroll provider to someone else is completely irrelevant to who your employer is. You need to refer this to whoever is head of schools HR in your LA.

    What does your actual contract of employment say?

    I suppose it's possible, in theory, that a contract of employment could say a specific benefit was only available if you used the Council's payroll servcie, but it seems very unlikely. Anyway it would have to be clearly spelt out in the childcare voucher scheme rules. Do you have a copy of those? If the scheme rules don't say that then payroll can't just invent it later.

    The law, incidentally, is in section 35 (2) Education Act 2002

    http://www.legislation.gov.uk/ukpga/2002/32/section/35

    Your union should be pursuing this more vigorously on your behalf.
     

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