In Wales recently, a local authority decided to close an infant and junior school and open a primary school on the same site with the same teachers and pupils. With the infant head retiring, the excellently performing junior school head thought the job of boss of the new school would be hers.

However, because there is no change of employer, Transfer of Undertakings (Protection of Employment) Regulations 2006 - known in the trade as Tupe - do not apply so the employment does not transfer automatically.

Worse, for the junior head, she was told the head and deputy posts had to be advertised nationally, under the Staffing of Maintained Schools (Wales) Regulations 2006.

She was faced with having to apply and compete for what she reasonably considered to be her job.

The local authority was persuaded to extend the age range of the junior school and close the infant school. So there was no new school and no vacancy.

In England, the position is different because the School Staffing (England) Regulations 2003 provide that vacancies need not be advertised if the governing body has “a good reason” not to. Whitehall guidance advises that a good reason might be that a new or merged school is formed from an immediately pre-existing school. If there is more than one potential candidate for the post, it can be ring-fenced.

For voluntary-aided or foundation schools (where the governing body is the employer), Tupe rules probably will apply as there will be a change of employer and contracts will transfer automatically.

Simon Thomas, Solicitor, National Association of Head Teachers.