Changes in the way schools are organised raise complex questions about who is ultimately at the top of the chain of command, says Richard Bird.

Held to account?

The significant changes taking place in the organisation of the school system raise a number of issues for ASCL members. These include to whom and for what they are accountable under the different arrangements that are co-existing and are likely to co-exist for the foreseeable future.

Let’s take the simplest situation first. In a foundation school the governors are the employer and the head is responsible to them. They may lose their powers if the local authority (LA) believes that they are misusing them or failing to provide an education that is judged adequate by the standards of the time, but the LA has no duty of care for the staff.

A typical consequence of the governors being the employer is that, though they are obliged to adhere to national pay and conditions for teachers, they are not obliged to follow a LA single status scheme (though their inherited liabilities may include equal pay liabilities).

A foundation school with a trust and a voluntary aided school are also employers. But the founding trust or charitable body has a majority on the governing body and may replace the members who constitute the majority at any time they wish in order to ensure that the purposes of the trust are being fulfilled.

As with all maintained schools, the LA has the power and duty of intervention but, again, the authority has no duty of care for the staff, who are not its employees.

Dual system

Community and voluntary controlled schools operate under a very curious dual system. The LA employs the staff and so there is the capacity for a claim of equal pay from one school to another.

However, the governors exercise powers of appointment, promotion, discipline and dismissal. The LA must dismiss a person the school says it wants dismissed. Yet, as the employer, the LA has a duty of care and may be joined to the governors in any claim made by staff.

In all these schools, teaching staff will most likely be under ‘Burgundy Book’ conditions (the national conditions of service). However, the obligation on the LA to honour these conditions where they involve payments only applies to community and voluntary controlled schools.

The day-to-day control of the schools, however, is entirely in the hands of the head and governors. The director of children’s services may have views but s/he has no means of enforcing them except by persuasion, unless the management or governance of the school gives rise to legitimate concern. There are processes for appeal against the LA’s intervention.

Academies are supposed to have more freedom. It depends, however, what one means by freedom. This, in turn, depends upon the kind of academy.

The original academies had significant freedom from government prescription. All academies have the freedom to set their own terms and conditions of service as long as this does not apply to staff transferring from a previous school identifiable as the same enterprise.

Later academies, particularly under the Ed Balls regime, had funding agreements applied that imposed some restrictions over admissions and exclusions/fair access, though these do not in practice seem to have been very onerous.

Academy distinction

The real distinction among academies is between those which are free-standing and those which are part of a chain: one might describe the latter as belonging to ‘not-very-local’ authorities. The free-standing academies are much like voluntary aided or foundation schools with greater freedom over curriculum and staff terms and conditions. For people with long memories, they are grant-maintained schools plus.

Chain academies are a different kettle of fish. They may have a trust that sits separate from the governors of a particular school and though the governors have some direction of the school, the trust – like the LA of yore – may reserve to itself the power to hear appeals on behalf of staff, for example.

They also may have their own bureaucracy. Some have chief executives who act as chief education officers did before local management of schools clipped their wings. They may intervene and get rid of headteachers who are not producing the results that have been contracted for. There may also be central policies that apply to all schools in the chain regardless of the judgement of the head and governors.

So members looking to apply for senior roles have a choice that goes beyond salary and the inherent challenge of the school (including its undisclosed deficit). They will need to ask searching questions and use their antennae to probe issues of support, challenge and freedom in a number of dimensions.

Rhetoric is one thing. Reality is another.

• Richard Bird is ASCL’s legal consultant

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