This is an important issue for schools, particularly in relation to recruitment and if a school becomes part of an academy as this would be a TUPE transfer. Basically continuous service still counts for sick pay, redundancy and maternity. In fact, for teachers all aggregated service counts for sick pay purposes, even if there has been a break.
The only right that is lost relates to unfair dismissal. If an employee (teacher or support) leaves to go to a new employer their rights not to be unfairly dismissed only accrue after two years continuous service in the new school. So, if they move to a local authority maintained school within the current area continuity would be maintained.
Continuous service can be relevant for various employee rights and benefits:-
- Unfair dismissal
- Redundancy
- Sick pay
- Annual leave
- Maternity pay
When an individual is employed by an organisation covered by the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order and leaves that organisation to start at a new organisation also covered by the Order, the following day, there will be no break in service for some employee benefits (see below).
The position on conversion to an academy is quite straightforward. There will be a TUPE transfer and continuity of service for all employees will be preserved, for all rights.
If an employee chooses to leave voluntarily, after the transfer, and goes to another academy or LA school the terms of the Burgundy book, Green Book and Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order then become relevant. Dealing with each situation in turn:-
- Unfair dismissal
A new role at another academy or school outside the current local authority would mean continuity of service would start again. An employee needs to be employed for 2 years before they are protected from being unfairly dismissed. This is exactly the same if an employee leaves now to go to an academy or a school outside the current LA. The new school would be a new employer, so a new start and continuous service starts from when they begin the new role. If an employee moves schools within the current local authority to another local authority school, continuous service would continue because there is no new employer. It is the same local authority, so the same employer.
- Redundancy
Previous service would count if an employee went to a new role at an academy or LA school (in any area) provided there was no break in service i.e. 31st August finish, followed by 1st September start. The Redundancy Payments Modification Order preserves continuity of service for the purposes of a redundancy payment. The new academy or LA school must recognise the previous service.
- Sick pay
Teachers – Burgundy book – ‘service includes all aggregated teaching service with one or more Local Education Authorities’. This is the case regardless of any break of service because it is ‘all aggregated service’. This would cover academies and LA schools. So, if a teacher took a break from teaching for 10 years after previously teaching for, say 7 years, they would have 7 years aggregated service for the purposes of calculating sick pay entitlement. This would be with any academy or LA school.
Non-teachers – Green book – paragraph 14 covers Continuous Service. If a non-teacher goes to work at an academy or LA school continuous service is maintained if there is no break, for the purposes of sick pay entitlement.
- Annual leave
Teachers – not applicable.
Non-teachers – Green book paragraph 14 covers Continuous Service. If a non-teacher goes to work at an academy or LA school continuous service is maintained if there is no break for the purposes of annual leave entitlement.
- Maternity pay
Teachers – Burgundy book – Increased maternity entitlement is after 1 year’s service. If a teacher moves to another academy or LA school and there is no break, previous continuous service counts.
Non-teachers – Green book – Increased maternity entitlement is after 1 year’s service. If a non-teacher moves to another academy or LA school and there is no break, previous continuous service counts.
In addition for non-teachers there are two additional rights for non-teaching staff contained in the Green book:-
- Where an employee (non-teaching) returns to local government service following a break for maternity reasons, or reasons concerned with caring for children or other dependants he or she will be entitled to have previous service taken into account in respect of the sickness and maternity schemes provided that the break in service does not exceed eight years and that no permanent paid full time employment has intervened. For the purpose of the calculation of entitlement to annual leave the eight years’ time limit does not apply provided that no permanent full time employment has intervened.
- Following a TUPE transfer if an employee (non-teaching) returns voluntarily to local government service continuity is broken. Where an employee returns in such circumstances, without a break between employments, all previous continuous service will be recognised for the purposes of calculation of entitlements to annual leave, occupational maternity leave/pay and occupational sick pay. This is subject to the return to service being within five years of the original transfer.
