Who is the employer in schools, and does it matter? It does when there is a choice between part-time and agency staff. At present, whereas part-time staff have all the employment rights (once acquired) of full-time staff, agency staff have no claim against the school. Their employer is the agency.
The Lisbon treaty would give agency workers rights, and the Government has promised to act on them, but the courts have refused to make law on this. Until Parliament acts, agency workers may be removed from a school on request, without compensation.
For foundation schools without a trust, the governors are the employer. For voluntary-aided schools, the same applies, but the faith trust may impose conditions of employment via its majority on the governing body.
For other maintained schools there is a divided responsibility. The contract is held by the local authority, but the powers of appointment, promotion and dismissal are held by the governors. Case law suggests the governors are corporately answerable, but the local authority may deduct unreasonable settlements (say, for redundancy) from the school budget. The contract will include teachers’ pay and conditions and the Burgundy Book - detailing national conditions of service for teachers in England and Wales - and there may also be local agreements.
For an academy run by a trust, the governors are not the employer, and governors’ powers may not include appeals from employment decisions. Interestingly, if the local authority is part of the academy trust, it may have more power over employment than it does in the schools it maintains.
Richard Bird, Legal consultant to the Association for School and College Leaders.
