Your legal questions answered by the ASCL member support team.

Academy checklist

Q At the end of last term, our governing body had initial discussions about academy status. Some of the governors were very interested in us exploring this option, others not so keen. I will need to give them a steer when we next meet. What is ASCL’s advice?

A As an association that represents members in all types of institutions, ASCL takes no particular view on academy status, as long as schools and colleges continue to work in partnership for the good of all young people in the area. Becoming an academy will be right for some schools and not for others – it is up to governing bodies and school leaders to weigh the pros and cons.

However, as leaders who once worked in grant maintained schools will be aware, there are legal issues which school leaders do need to bring to the attention of governors. For a start there are various inherited liabilities, such as arrangements entered into by the local authority on behalf of schools. The extreme is a PFI contract which commits the school to an annual pre-deduction from its budget, gives limited use of the building to the school, and ties the school to inflexible maintenance and ICT contracts.

Similarly, a local authority may have created a dual use agreement, which provides a minor authority with access to key school facilities and the site (sometimes unrestricted access). And the minor authority might have sub-contracted its access to a commercial provider. Will it be possible to disentangle the school from this? Unlikely, but governors will need legal advice.

Governors will also need legal advice if the LA has not sorted out Single Status and Equal Pay agreements; there are still cases creeping their way through the legal system.

None of these types of inheritance issues is impossible to resolve, but it is important to nail them down before, rather than after, the school assumes its liabilities.

Future management of staff will require careful consideration and good human resource (HR) advice. If the school is already an employer, the problems should already have been explored. If not, they should be. It is worthwhile reviewing the quality of HR advisers and their commitment to the school in its new role.

If governors are keen to rapidly move staff to new terms and conditions, it would be as well to make sure that they are quickly introduced to the mysteries of the Transfer of Undertakings Protection of Employment (TUPE) Regulations. Buildings issues include inherited dangers like asbestos. The school will have its own survey done and put protective measures in hand, but who is liable for damage that staff and students have suffered in the past?

Going forward it will be important for the school to understand the liabilities that an unsafe workplace can generate, as well as the risks to the general public when they are invited on site. It is as well not to assume that the LA is entirely on top of these issues, though governors should be if they already own the premises.

In a completely different area, sponsors of the early academies were extremely effective in acting through the law to prevent damaging stories (particularly about staff misconduct) from leaking out into the media.

Although the Secretary of State has promised anonymity to teachers accused by pupils, there may be some merit in considering what legal resources the school will have to help it preserve its reputation.

When the governors have been advised of all these things, it will be as well for school leaders to check their own position. A quick call to the ASCL hotline when it all begins may help to prevent them unexpectedly re-entering the job market.

Finally, it will be sensible to look very closely at governance arrangements. Rogue governors are rare but nevertheless they do exist and it is quite unclear how, or if, the YPLA or the Secretary of State would intervene to deal with a breakdown in relationships. It is worth looking at how far the proposed governance arrangements allow a take-over by a small group. There is a view that if you think it can’t happen to you, it is probably just about to…

The important thing to remember is that there is no rush. There is no deadline on becoming an academy, so take as much time as needed to untangle the implications, discuss the advantages and disadvantages, and make sure the decision is the right one for the whole school community.

The ASCL hotline is a completely confidential service available to answer members’ questions on issues that arise in school/ college. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

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