(This note is not part of the Order)
This Order modifies various statutory provisions relating to employment to take account of the provisions contained in sections 35 and 36 of the Education Act 2002 and the Staffing of Maintained Schools (Wales) Regulations 2006 (“the 2006 Regulations”). Under these provisions, while a school has a delegated budget, the governing body has powers as to the appointment, suspension, conduct and discipline, capability and dismissal of staff at the school, although the authority remains the employer of staff at community, voluntary controlled, community special schools and maintained nursery schools. The authority may also be the employer of certain support staff at foundation, voluntary aided and foundation special schools. This Order and the modifications made by it apply to Wales only.
The Education (Modification of Enactments Relating to Employment) Order 1999, which is revoked, made provision in similar terms in relation to the application of employment law consequent upon the staffing provisions of the School Standards and Framework Act 1998, to be repealed and replaced by the 2006 Regulations.
Article 3 makes general modifications to the statutory provisions set out in the Schedule to the Order by providing that—
(a) references to an employer or someone acting as such are treated as including references to the governing body exercising its employment powers;
(b) employment by the authority at the relevant school is treated as employment by the governing body;
(c) references to employees are treated as referring to employees at the relevant school;
(d) references to dismissal by an employer are treated as including references to dismissal by the authority on the direction of the governing body; and
(e) references to trade unions recognised by an employer are, as far as the governing body is concerned, treated as references to trade unions recognised either by the authority or the governing body.
Some provisions of employment law are excluded if an employer employs less than a certain number of staff. Article 3 further provides that the modifications which it makes do not cause the governing body to be such a “small employer” if it would not have been so without the modifications.
Article 4 provides that where the governing body of a school requires the authority to dismiss a member of staff, provisions relating to dismissal in the Employment Rights Act 1996 have effect as if the governing body were the employer, and the governing body's reason for requiring the employee's dismissal were the employer's reason for dismissing the employee.
Article 5 provides that a dispute between staff employed to work at a school with a delegated budget and the governing body is capable of being a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. A dispute which is a trade dispute only by virtue of article 5 is not a trade dispute so far as staff employed to work at other schools are concerned.
Article 6 provides that the governing body is to be the respondent to any application to an employment tribunal arising out of any of its actions taken in the exercise of its employment powers, or any action taken by the authority at its direction, but provides that any award of compensation or costs or other order (other than an order for reinstatement or re-engagement) is to be made against the authority. It further provides that the authority is to be notified by the governing body when an application is made and is to have the right to apply to be made an additional party and to appear at the hearing of any such application.