Earlier this week, Labour leader Sir Keir Starmer gave a speech in which he doubled down on the party’s proposal to charge 20 per cent VAT on independent school fees, as well as ending business rate relief, with a view to raising £1.7bn.
The policy has long caused concerns that it may force some independent schools to close. In the past few days, Alton School in Hampshire confirmed it would close this summer due to the decline in student numbers caused by “adverse political and economic factors” making it “unviable” to run.
This follows warnings in April from the Independent Schools Council (ISC), whereby surveys of schools confirmed that many feared closure due to parents taking their children out of the school because of rising costs.
While the VAT policy may not come to pass, many independent schools are already being forced to manage the challenges due to concerns over their financial future - especially with many still reeling from Teachers’ Pension Scheme changes.
As such, the anticipated financial pressures are seen as almost certainly leading to budget constraints affecting resources, class sizes, infrastructure maintenance, investment in extra-curricular opportunities and the ability to commit to charitable activities, such as scholarships or community programmes.
Most notably though, the changes could hit teacher numbers, with many likely to consider reducing teacher salaries and benefits, or making redundancies. This is of course easier said than done, and overlooks the likely impact this will have on teacher morale and retention.
The legal view
Legally, schools cannot affect changes to teachers’ pay and benefits without moving through a process. This includes notifying teachers in advance, consulting with recognised trade unions and, where possible, reaching an agreement on the amended contractual changes.
A change to teachers’ pay and benefits is likely to be unlawful unless an agreement is reached, and any change must be applied fairly and consistently to avoid claims of discrimination. Schools cannot force a teacher to accept new terms and conditions of employment; instead, they should be given the opportunity to agree or refuse.
A termination of employment should only be considered if agreement cannot be reached with the recognised unions, and schools will need to be aware of the fact that this carries the risk of an unfair dismissal claim.
Defending a claim for unfair dismissal will require a school to demonstrate both a fair reason for dismissal and that a process was undertaken before reaching this decision.
Equally, unilaterally imposing contractual changes to a teacher’s terms and conditions of employment could give rise to grievances, resignations and legal claims for breach of contract and/or constructive unfair dismissal.
In determining whether redundancies are necessary, it will be crucial for schools to identify whether any alternatives to dismissal exist, such as redeployment, retraining and restricting external recruitment.
Schools will be expected to warn those affected by economic changes as soon as is reasonably practicable. They will also be expected to consider, where possible, the distinct recruitment periods for teaching roles, usually aligning with notice provisions and end-of-term departures.
Consultation will need to occur with trade unions, covering ways to avoid dismissals, how the numbers of teaching staff affected can be reduced and how to mitigate the consequences of redundancy.
Impact on the sector
If redundancy cannot be avoided, fair and objective redundancy criteria will need to be established and applied, before termination communications are made confirming financial entitlements on departure.
Failure to recognise good employment practices in implementing the above changes could lead to costly legal actions and challenges at a time when schools can ill-afford the spend.
More pertinently, the concern is that these changes will drive out high-calibre teaching staff from the profession, leaving an already stretched education system without the resource it so desperately needs.
Emma Thompson is a partner and head of employment at Kent and London law firm Thackray Williams
For the latest education news and analysis delivered directly to your inbox every weekday morning, sign up to the Tes Daily newsletter
