News and guidance

This academic year, we have had considerable success in the number of policies where we have directly influenced the outcome and/or our proposals have been adopted. In addition, ASCL has been influential in the General Election manifestos of the main political parties, with many of the parties committing to the key points within the ASCL General Election Manifesto – see www.ascl.org.uk/manifesto2017

It is important to note that the policy team at ASCL is unique. No other trade union or professional association employs a team of specialists working on members’ behalf who have all held senior education roles. Our specialists are national experts, regularly consulted by the DfE and its agencies. Our specialists do not just influence policy, they are an important resource for our members – they provide up-to-date information, advice and guidance in a way that no other professional body can.

Year 7 resits

ASCL has campaigned relentlessly in opposition to Year 7 resits. ASCL’s Primary and Governance Specialist Julie McCulloch has worked with the Standards and Testing Agency (STA) and senior DfE officials to persuade ministers that Year 7 resits are not in the interests of pupils and will not achieve the intended policy outcome of supporting children who have not reached a threshold by the end of primary school education to enable them to do so.

We were therefore pleased when, in October, the Secretary of State laid a written statement before Parliament that said: “We will not introduce statutory mathematics and reading resits on children’s arrival in Year 7. Rather, we will focus on the steps needed to ensure a child catches up lost ground. High-quality resit papers will be made available for teachers to use if they wish, as part of their ongoing assessments. In addition, we will introduce a targeted package of support to make sure that struggling pupils are supported by teachers to catch up in Year 7.”

Primary assessment

Given significant concerns about primary assessment, ASCL has called for a review. The Secretary of State has now conceded that there is a need for government to set out a longer-term, sustainable approach and that she will launch a consultation on primary assessment and the implications of accountability.

Definition of coasting

ASCL’s Deputy Director of Policy Duncan Baldwin has been in frequent discussions with senior civil servants about what would be an appropriate figure for coasting. The figure of -0.25 that has now been published is what we have been advising would be proportionate.

National Funding Formula (NFF)

ASCL has been campaigning for a national formula for distribution for more than two decades, with our latest campaign – #whatwouldyoucut – gaining great publicity and awareness. We have shared our concerns regarding the efficacy of the initial proposals with ministers and the DfE who have engaged positively with our evidence. We have been very clear that the purpose of NFF is to distribute available funding in a fair and transparent way. We have also been very clear in our messaging that NFF cannot address the insufficiency in the system.

All three main political party manifestos pledged to continue with NFF and to do it in such a way that no school loses out as a result of reforms to the distribution formula.

New GCSE grading

We have had regular meetings with Ofqual on managing the impact of qualification reform on GCSE results and A level results for summer 2017. As a result, Ofqual intends to raise the issue on ongoing volatility until all subjects are reformed with Ofsted, the National Governance Association (NGA) and regional schools commissioners (RSCs), as the very different grading structure and phases of reform mean that it will be very difficult to infer school trends for the next few years at GCSE.

We had similar input with the DfE and have continued to stress the need for communication of the impact of the new grading to all relevant stakeholder groups.

Modern foreign languages (MFL)

Following the publication of Ofqual’s inter-subject comparability report, we have continued to raise concerns about the severe grading of GCSE MFL. As a result, Ofqual has signalled its intention to look again at this issue. We will continue to collect evidence to support this and demonstrate the impact this is having on results and take up of MFL in schools.

Future role of local authorities (LAs)

ASCL’s Director of Policy and Public Relations Leora Cruddas was on the DfE advisory board on the future role of LAs. We have influenced the report that was presented to the Secretary of State that contains a strong narrative about the school-led, self-improving system and there is acceptance of a more strategic role for local authorities.

As a direct result of ASCL influence, the report states: “This does mean that in the long term, LAs will cease to maintain schools. But this does not mean that LAs’ role in education will disappear – rather, they will adopt a more strategic position in order to support a dynamic school-led system.”

Lord Nash has, in the foreword to the Academies Financial Handbook 2016 (AFH), said, “All boards must be clear about their trust’s chain of executive leadership and accountability.” However, the DfE also needs to take the lead in providing more clarity and consistency about the role of the senior executive on MAT boards of trustees.

The legal position around senior executive’s standing is clear. The AFH and latest DfE model Articles of Association permit the senior executive (which should be read to include the CEO or executive head/ principal) to be a trustee with the consent of the members of the trust. However, this is not always being translated through to DfE policy, as we are recently seeing Regional Schools Commissioners (RSCs) refuse to allow the senior executive to sit on the trustee board.

While there are strong arguments for limiting the numbers of employees on trustees boards to the most senior member of the executive team (in that it ensures strong accountability and promotes effective decision making), completely excluding senior executives from the board is problematic for the following reasons:

1. Accountability – the board makes decisions by collective responsibility and while there may be disagreements in the debate around a decision, the entire board must stand collectively behind any decision. If a CEO was not part of this collective decision making, it would be easier for him or her to step away from a board decision. Any disconnect between the board and the executive may well lead to skewed accountability and dysfunctional decision making.
2. Potential liability – this depends very much on the nature of the role and circumstances of each case, but there is a risk that a senior executive may be seen as a ‘shadow director’, which could leave the executive accountable without having any input into decision making.
3. Normal business practice – it would be very unusual for a CEO not to sit on a board in the business world.

While the balance between the board and the executive always needs to be carefully managed, careful consideration should be given before excluding the executive from trust boards.

Gender pay reporting requires all relevant employers with more than 250 employees to publish information about their gender pay gap. There are two sets of regulations, one applying to private and independent schools (effective from 5 April 2017) and the second applying to maintained schools and academies (effective from 31 March 2017). Employers will have to publish their first gender pay gap reports within 12 months of the relevant commencement date.

The regulations do not contain any enforcement provisions or sanctions for non-compliance. However, the government has stated that it will run checks to assess non-compliance and will publish tables, by sector, of employers’ reported gender pay gaps, and that it may publicise the identity of employers who have not complied with the requirements.

The ASCL Benevolent Fund (ABF) is an important element in the association’s policy of providing protection and care for all of its members, past and present, and their dependants. While most members, active and in post, are unlikely to need help, a serious accident, redundancy, chronic illness or disability can change the situation quite traumatically. Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help. If you know someone who may benefit from the fund or if you think you would benefit yourself, please call 0116 299 1122 or find out more online at www.ascl.org.uk/benevolentfund

ASCL Benevolent Fund ASCL has been quoted widely in the media over the recent period on a range of issues.

ASCL has been highly visible in the media voicing the concerns of members, particularly over the issue of funding. We published our ASCL General Election manifesto in which we called on the political parties to sign up to five priorities, which was reported in TES.

We also identified that a pledge in the Conservative Party’s manifesto to increase school funding by £4 billion by 2022 would largely be subsumed by an increase in the pupil population, and was therefore not enough to counteract real-terms cuts. We called it a “sleight of hand” and our comments were reported in The Guardian.

ASCL General Secretary Geoff Barton also wrote articles for TES and The Guardian on the manifestos of the political parties. On the eve of the election, an article by Geoff – ‘A To-do List for a New Government’ – was published in secondary school magazine SecEd, and on the morning of the result he wrote a column in TES.

Aside from the General Election, Geoff has also taken part in a number of television and radio interviews on other subjects.

These included a recent report about the number of weapons seized in schools to which we responded by setting out how schools work to protect and educate pupils. Geoff was quoted extensively in the national press, and was interviewed for BBC News at One, BBC Radio 5 Live and many local BBC and commercial radio stations.

BBC News, The Guardian and many local newspapers quoted ASCL’s response to an error in an OCR English Literature GCSE exam paper. We warned that the error would have caused stress and concern to students, and called on the awarding body to take appropriate action to make sure that candidates are not in any way disadvantaged.

ASCL is working with the DfE to promote and develop the School Immersion Programme. Collaborating with schools throughout England and Wales, this initiative aims to provide DfE staff with first-hand experience of school life and a greater insight into the wider impact of DfE policies to help shape future education strategy.

Participants undertake a three-day placement within a school or college to gain a deeper understanding of the issues faced by headteachers and teaching staff. To take part in the programme, please complete an expression of interest form.

If you have already hosted a visit from the DfE, you can provide your feedback online. This is invaluable for developing the programme for future participants and ensuring that schools, colleges and the DfE have a useful and productive experience.

Find out more online at: www.ascl.org.uk/sip

Academy transfers are becoming increasingly commonplace in the academies sector, largely as a result of re-brokering initiated by RSCs and voluntary mergers agreed between academy trusts. When negotiating the mechanics of the transfer arrangements, inevitably the question of warranty protection will arise at some point during the project, and whether an acquiring academy trust should, at the very least, be entitled to limited warranties from the transferring academy.

In brief, on any academy transfer, it is prudent for a responsible trust board to conduct a proper and thorough due diligence exercise so that they can identify and evaluate any potential risks and liabilities at an early stage of acquiring, sponsoring or merging with any academy. While due diligence plays an important part in helping the trust board manage the risks of the transaction and in supporting board decisions relating to the transfer, additional comfort can be taken by seeking to include certain warranties and representations in the transfer agreement.

To add some context, for any commercial transaction, the main purpose of warranties in any acquisition or transfer arrangement is to provide a buyer with a post-completion remedy against a seller if any statement in the warranties is incorrect or proves to be untrue and the value of the business acquired is reduced as a result, thus a mechanism for implementing a retrospective price adjustment. However, academy transfers are not commercial transactions and no purchase monies are being exchanged for the transfer of the business, assets and undertaking of the academy and, on this basis, some take the view that it is entirely unreasonable to expect warranties.

It is, however, important to distinguish between transactions where a single academy trust is transferring its academy from circumstances where a MAT may be transferring one academy from its group. In the former, once the academy trust transfers its academy’s entire business and assets to the acquiring trust, it will have no assets to satisfy any liabilities should they subsequently arise from a breach of any warranty. Clearly this is different to the latter situation where the transferring MAT will continue to operate. In these circumstances expecting some warranty protection may be entirely appropriate.

Of course, financial protection is not the only reason for expecting warranties. Including warranty provision can focus the minds of the board of the transferring academy trust into giving the acquiring trust comfort that all information that has been disclosed is true and accurate. This then supplements a thorough and detailed due diligence exercise so that the acquiring trust board can understand what assets and more importantly, liabilities they may be acquiring.

This is the time to keep reminding governors, parents and the local media that this year’s results cannot and should not be compared with those of previous years. The new grading system was introduced explicitly to avoid that. Ofqual’s summary of the many changes at GCSE and A level is here https://tinyurl.com/ppe4399 and it may be worth sharing some of this information in regular newsletters to parents and carers. We would also strongly suggest that governors are constantly reminded (for example, in the headteacher’s termly report) that simple comparisons of examination performance this year should not be made.

We recommend that a similar message is shared in advance of results day with your local media. To help you to communicate these messages, we have prepared an online resource – please visit: www.ascl.org.uk/workingwithmedia

This paper by ASCL Primary and Governance Specialist Julie McCulloch is suitable for teaching staff involved in setting and teaching the mathematics curriculum in all schools, including academies, and across all key stages. It is intended to provide information on mathematics teaching for mastery; school leaders should decide based on their context whether a mastery approach is appropriate for their school. Download the full guidance here: www.ascl.org.uk/masterymaths

The government has committed to three million apprenticeships in England by 2020. To meet this target, an Apprenticeship Levy has been introduced that came into force in April. In effect, only employers whose pay bill exceeds £3 million per year will contribute. Although this only equates to a small proportion of employers, it is likely to encompass the majority of maintained schools, where the local authority is the employer, and some larger MATs. Employers will pay 0.5% of their pay bill and receive a £15,000 annual allowance against the levy.

Many commentators have expressed concerns over already over-stretched budgets in the education sector and the Local Government Association has called for all schools to be exempt from the levy. However, while schools are still on the hook, it is important to get the most out of levy contributions by finding eligible apprenticeships to suit the needs of the individual school.

Employers will be able to access funding to pay for apprenticeships and other professional development for staff through their own individual account via the online Apprenticeship Service (www.gov.uk/guidance/manageapprenticeship-funds).

Each local authority will have

its own account and there is currently no requirement to ring fence each school’s funding. This means that local authorities can decide how to spend the money from the levy across the whole of the local authority (not just schools). Therefore, it is critical for maintained schools to ensure access to funding paid and to develop plans for spending their share of the funds.

MATs will have their own account and therefore will be in a better position to access funding for appropriate apprenticeships. MATs will need to ensure that the funds benefit each academy.

A ‘use it or lose it’ policy applies and levy contributions that are not spent within 18 months will expire and schools will not be able to use them.

We are often asked when teaching staff may be asked to cover lessons, and what staff should be directed to do in ‘gained time’. ASCL Pay, Conditions and Employment Specialist Sara Ford has prepared some information on our website to provide you with assistance on this matter – see the information here: www.ascl.org.uk/teachingstaffcover If you have any additional queries, please call the ASCL Hotline on 0116 299 1122.

Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP. If you have a specific legal issue relating to your role as an employer, we recommend that you seek advice from a qualified legal professional. Members can also call the ASCL Hotline on 0116 299 1122 with respect to legal issues relating specifically to their own employment.

We have been made aware that some schools are receiving freedom of information (FOI) requests from suspicious email addresses. If you receive a request asking for information about your school or college, please do not share any information without investigating who you are sending it to first. If in doubt and for further advice, please speak with the Information Commissioner’s Office (https://ico.org.uk/). In addition, please also take precautions against potential malware and ransomware hidden in any emails.

Retirement need not mean the end of your involvement with ASCL. We have valued your membership and hope you feel the same. By becoming an associate member, you can continue to enjoy many of the benefits of ASCL membership at a reduced cost.

Associates continue to receive ASCL publications, including Leader and a regular associates newsletter and can access our website www.ascl.org.uk There is representation through an elected Associates’ Committee, an annual reunion lunch and committee involvement at local level. Associates also have the chance to give something back through the Associates Voluntary Service, which offers assistance and support to members still in post.

Associate membership is available either by payment annually or by a one-off payment for a lifetime subscription. Join as an associate member today and find out more about how we can support you in retirement – see online for more details: www.ascl.org.uk/associates

UK Visas and Immigration has named and shamed employers hiring illegal labour since 2008. However, as from July 2012, the scope of the offence extended from “knowingly” employing an illegal migrant to include where an employer “has reasonable cause to believe” the person is working illegally, increasing the likely number of prosecutions.

When should they be used?

• Where someone is needed for a specific task or project, such as research.
• Where funding comes from an external source and may not be renewed after a fixed period (typically within charities or education).
• Where demand for a particular post is not clear and the employer wishes to carry out a trial period before committing themselves to offering a permanent position (not related to the performance of the person themselves).
• To provide maternity cover, or to cover for someone on sabbatical or long-term sick leave.

When should they not be used?

• For testing or assessing an individual’s ability to do the job.
• For replacing the use of a probationary period.
• When there is no legitimate reason for the post not being permanent.

Things to consider:

Making the offer

You should always be mindful that fixed-term employees have the same rights as permanent employees (including, for example, unfair dismissal if they have at least two years’ service). You must be explicit in both the contract and offer letter that the post is fixed-term, and you should also be explicit in both of these documents about the reason why the post is being offered fixed-term.

Notice periods

If there is no provision to allow you to end the contract before the date specified and the contract is terminated early, the employee could claim damages for loss of earnings during the remainder of the contract.

If you don’t have an estimated end date, for example if someone is covering maternity leave but you don’t yet know when the person they are covering will return, then you can put in an estimated (likely end date) but caveat the wording to allow you to end the contract in the event that the person they are covering returns before the estimated return date.

The four year rule

Under regulation 8 of the Fixed-term Employees Regulations, employees who have been continuously employed for four years or more on a series of successive fixed-term contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed-term contract can be objectively justified.

Redundancy payment

An employee becomes eligible for a redundancy payment when they have at least two years’ service with their employer. Please note that if the person has continuous service with a Redundancy Payments Modification Order (RPMO) employer, then that previous service will be taken into account when calculating if they have the required two years’ service.

Ending fixed-term contracts

In the eyes of the law, the ending of a fixed-term contract is a dismissal. In addition, fixed-term employees with more than two years’ service have the right to bring a claim for unfair dismissal in the Employment Tribunal. Therefore, it is important that you have a potentially fair reason for dismissal (capability, conduct, redundancy, statutory restriction or some other substantial reason) and that you act reasonably in treating that as a reason for dismissal, which would include following a fair procedure.

The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 came into force on 1 May 2017, with the exception of regulations 2(3) and 2(4), which come into force on 1 September 2017.

Regulation 2 applies to governing bodies of maintained schools and amends the School Governance (Constitution) (England) Regulations 2012 (the 2012 Regulations) to allow for removal of elected parent and staff governors (2(3) and 2(4)). As it stands, elected parent/ staff governors cannot be removed under the 2012 Regulations.

Removal is in accordance with the procedure already set down in the 2012 Regulations (Regulation 25), by resolution passed at a meeting of the governing body. The governor proposing removal must at the meeting give reasons for doing so and the parent/ staff governor must be given an opportunity to make a statement in response. The removal must then be confirmed by a resolution passed at a second meeting of the governing body, held not less than 14 days after the first meeting and the matter of the governor’s removal from office must be specified as an item on the agenda for each of the meetings.

The 2012 Regulations are further amended to provide that any elected parent or staff governor so removed will be disqualified from holding or continuing to hold office as a governor of a school until the date immediately after the fifth anniversary of the date of their removal.

The DfE is likely to issue guidance, setting out the circumstances in which the new power is to be used, as well as any proposed appeals process. Codes of conduct continue to support governing bodies in dealing with behavioural issues concerning governors.

In February 2017, the Ministry of Justice launched its website in respect of tribunal decisions (see www.gov.uk/employment-tribunaldecisions). While tribunal decisions were previously part of the public record, accessing them required a trip to Bury St Edmunds. Although the website may make it easier to identify vexatious employees, it will also make it easier to access information about employers.

We issued a press release following an error in the Oxford, Cambridge and RSA Examinations (OCR) English Literature GCSE exam paper. Commenting on the error, ASCL General Secretary Geoff Barton, said:

“Candidates have every right to expect that awarding bodies complete a full check on exam papers to ensure that they don’t experience such problems. Similarly, schools and colleges have to pay thousands of pounds a year to examination boards and are entitled to better quality assurance than this. This appears to be a serious error and it will have caused stress and concern to candidates. Students need to be able to perform to the best of their ability and seeing errors in a paper can undermine their confidence. We call on the awarding body to take appropriate action to make sure that candidates are not in any way disadvantaged.”

In addition, Geoff and Deputy General Secretary Malcolm Trobe have met with Chief Regulator Sally Collier and her team, and they are taking the issue seriously – including attending marking sessions to see that the difficult process of trying to ensure fairness across candidates is done with great care.

The DfE has released data on the levels of overall, authorised and unauthorised absence in primaries, secondaries and pupil referral units (PRUs) in the autumn term of 2016 compared with the previous year’s data. The statistics show that, overall, absence rates increased slightly from 4.1% in 2015 to 4.3% in 2016. While illness remains the most common reason for absence (accounting for 58.4% of all absences) and has increased from 2.4% in 2015 to 2.5% in 2016, unauthorised holidays have also slightly increased from 0.2% of possible sessions in 2015 to 0.3% in 2016.

The small increase in the number of unauthorised holidays may partly have been attributable to Jon Platt’s High Court case last May where it was ruled that when considering what attending school ‘regularly’ meant in relation to a parent’s legal duty to ensure that their child attends school, magistrates were right to take into account the wider picture of Mr Platt’s daughter’s regular attendance record when they decided he had no case to answer.

That decision was later overturned on appeal by the Isle of Wight Council and in a landmark ruling by the Supreme Court in April 2017 it was confirmed that the term ‘regularly’ means “in accordance with the rules prescribed by the school”. In practice, this means that parents should not take their child out of school for holidays without the headteacher’s approval. In light of the recent ruling we may therefore see a decrease in the percentage of unauthorised absences attributable to holidays in the 2017 autumn term statistics.

The Children and Social Work Act 2017 (CaSWA) received Royal Assent on 27 April 2017. The act sets out the following requirements in respect of children who were previously looked after by a local authority. Once the provisions come into effect they will mean the following for schools:

1. The governing body for maintained schools in England must designate a staff member as “having responsibility for promoting the educational achievement of registered pupils”. A ‘registered pupil’ is defined as one who was looked after by a local authority but ceased to be looked after by them as a result of a child arrangements order, a special guardianship or an adoption order. A pupil will also be a ‘registered pupil’ if it appears to the governing body that s/he was in state care outside of England and Wales (because s/he would not otherwise have been cared for adequately) and has ceased to be in that state care as a result of being adopted.
2. There will be a requirement for academy agreements to include provision that the proprietor will designate a staff member as having responsibility for promoting the educational achievement of ‘relevant pupils’ registered at the academy. A ‘relevant pupil’ is defined as one who is either looked after by a local authority or was looked after by a local authority but ceased to be looked after by them as a result of a child arrangements order, a special guardianship or an adoption order. A pupil will also be a ‘relevant pupil’ if it appears to the proprietor of the academy that s/he was in state care outside of England and Wales (because s/he would not otherwise have been cared for adequately) and has ceased to be in that state care as a result of being adopted.

Any academy agreements entered into before this provision comes into effect will be treated as if they included the above provision. In addition, the act will also require schools to teach more about relationships, including:

• Relationships education to be provided to pupils of compulsory school age receiving primary education at schools in England.
• Relationships and sex education to be provided (instead of sex education) to pupils receiving secondary education at schools in England.

The regulations to enact the above will also require the Secretary of State to issue guidance, which a proprietor of a school will be required to adhere to.