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Baroness Thomas of Walliswood: I have been listening to this discussion with a bit of difficulty at this

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hour of the night--my brain does not seem to be functioning too well. As I understand it, in some cases teachers may be, and in others they may not be, transferred from one employer to another. In those circumstances, does the transfer of undertakings regulations--TUPE--govern the transfer of those employees?

Baroness Byford: The noble Baroness, Lady Thomas of Walliswood, has again beaten me to it; I must rise more quickly, though I know it is late.

When schools come into the action zones, presumably not all the teachers in those schools will necessarily have their contracts continued. Part of the action zones' objectives is to improve standards in the school. I presumed--maybe in my innocence--that some of the teachers, and let us hope the majority, will still have contracts that continue to run, but some may well find their contracts not continued.

My question to the Minister is twofold. First, what happens to those teachers who, once the school has joined the action zone, find that their contracts are not renewed and kept up? In fact, to whom does the teacher look in that situation? At the other end--I first raised it with the noble Baroness after Second Reading and she kindly wrote back to me--what happens at the exit?

Teachers whom the zones feel will do a good job will have been taken on and presumably, as a result, their pay may have been increased. But what will happen when the zone ends? Will they revert to their previous level of pay? By whom are they employed? What will happen to their pension rights? I refer particularly to those who were not taken up in the first place and, more importantly, to those who have had an increase in their pay during their time in the zone, which will presumably have an effect on their pensions as well.

I should be grateful to the Minister if we could have a little more clarity on the matter. Perhaps it is the time of night, or perhaps it is because the noble Baroness, Lady Thomas, keeps beating me in rising to speak, but I am still a little confused about what exactly the situation is for those teachers as the zones develop.

11.30 p.m.

Lord Swinfen: It is not just a question of the finances. It could well be the hours of work or the length of holidays. It may well be that in an education action zone it is decided that the school day should be longer or that the school term should be longer in order to make certain that the pupils are given sufficient time to learn more. It may be wished to break up the school year not just into three terms but into four, five or six so that everything comes in short, sharp bursts and the pupils can learn together. All those points need to be taken into account. The education action zones that will be putting this into effect should be responsible. I wonder whether the Government have really thought this through yet. The idea of an education action zone is a good one but there are all kinds of other points that we need to consider.

Baroness Blatch: My noble friend and the noble Baroness, Lady Thomas of Walliswood, have posed a

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number of questions which need to be answered in detail. Many members of staff will be following our proceedings very carefully and they will want to know the answers to these very detailed questions on matters which will affect their careers.

The Minister said that the function of employer can be passed on or can be ceded. Perhaps I may remind her that paragraph 14 of the background paper says that the establishing of an education action zone would not alter who employs the staff. In other words, the employer of staff will continue to be the local education authority. The teachers would remain employed on contracts within the teachers' pay and conditions document unless the governing body was given permission to disapply that document and renegotiated contracts with staff. But before giving permission to disapply, the Secretary of State will want to see that consultation has taken place with staff and their representatives.

Consultation is one thing, but what are the rights of teachers in these situations? Paragraph (c) says that where governing bodies cede their powers to the forum the forum will only become the de facto employer of the school staff in place of the governing body, although the legal employer will not change. In other words, the LEA will continue to be the legal employer and that cannot be ceded to the forum, to a governing body or to anyone else. It is only for the day-to-day purposes of employing a teacher that the power to disapply pay and conditions will be ceded, and the actual legal employer will go on being the local education authority. The only way in which the forum can be an employer in the full sense of that word will be for those teachers which it employs directly.

The question posed by my noble friend Lady Byford is an important one. What will happen to them at the end of a rather short period like three years? Is one really going to find these superhero teachers, who will come in on a contract for just three years, with perhaps an extension of the contract of two years? However, there is nothing in the Bill to say that it can be extended beyond that period.

The question posed by the noble Baroness, Lady Thomas, is quite important. Under what we have colloquially understood to be called TUPE, does the transfer of undertakings apply? My understanding is that when public authority employees move from one public body to another or to a private body, then the transfer of undertakings does apply. It would be very helpful to know from the noble Baroness whether it applies in this case.

Lord Skidelsky: Before the noble Baroness replies, can she clear up the confusion in my mind? My noble friend has just said that the legal employer is the local education authority. The Minister has said equally certainly, in my recollection, that the legal employer is the school governing body. They cannot both be legal employers: which of them is the legal employer?

Baroness Blackstone: As I understand it, it is the governing body that is the employer although the contracts remain with the local authority. However, they can be with the school and it will depend on what kind

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of school it is. All the things that the noble Lord, Lord Swinfen, raised might happen on fixed-term supplementary contracts. If we are talking about new teachers who are taken on by a zone, they will operate on fixed-term contracts.

As regards the points raised by the noble Baroness, Lady Blatch, if teachers return to normal employment under the existing terms of the teachers' pay and conditions set-up, when they return to work with a school governing body or a local authority they will return to the existing terms and conditions which will only be suspended while they are new teachers working for an education action zone.

I return to what the noble Lord, Lord Skidelsky, asked. As I believe I made clear, the legal employer depends on the type of school. If it is a community school, it is an LEA, but if it is an aided or a foundation school, it will be the governing body. I hope that that clears up his question.

I shall be very happy to write to Members of the Committee on both the Liberal Democrat Benches and on the Front Bench of the main Opposition party, and to Back-Benchers too, setting all this out in detail rather than, at this time of night, enter upon complex aspects of the suspension of teachers' pay and conditions under the education action zone proposals where that may happen. I hope that that will be acceptable and that in the light of it the noble Baroness will feel able to withdraw her amendment.

Baroness Blatch: I am sorry that it has not been possible to bring this kind of information forward. The debate was well predicted. The teacher trade unions have shown a very real interest in the answers to some of these questions. I know that education authorities are particularly interested. The DfEE knows that. It is quite extraordinary that the information has not come down to the Minister in order that she can answer some of these questions.

For example, the answer as regards TUPE must be that either the provisions apply or they do not. It would have been very helpful to have had an answer on whether the transfer of undertakings applies in this case and if not, under what powers is there exemption from it. Does not the noble Baroness agree that when one disapplies pay and conditions provisions, just like investments they can worsen or improve? The noble Baroness has spoken a great deal about teachers getting more money and more generous conditions. Equally, there is no control over that, for once they are disapplied they are disapplied. Under this application it is possible for a third party, especially if given a fee and able to make money--as the noble Baroness said earlier and as the Prime Minister has agreed, profits can be made--it will be possible to vary one way or the other. Nothing in the Bill says that pay and conditions can be disapplied as long as they are disapplied more generously. It states merely that they may be disapplied. It would be helpful if the Minister would agree that they could be more generous or even less generous.

Lord Lucas: Perhaps I may add to the confusion in this area. It is clear the employer is the local authority.

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Schedule 16, and others, contain detailed provisions whereby the school decides who should be appointed as a teacher and the LEA then has to make that appointment. Nothing in this part of the Bill gives the education action zones the right to impose on the LEA changes to the terms and conditions under which it is employing teachers. It is not clear to me, therefore, how this mechanism is supposed to work its way down from decisions of the education action zones. As my noble friend Lord Swinfen said, perhaps teachers will be told to attend for an extra two hours and to provide extra tuition in games after school to improve pupils' performance. Clearly, the education action zone has to have the right to tell the LEA to do that so that it can change the terms of employment of its teachers. The teachers will then have a cause of action against the LEA, which is their employer. The Government have set out the route (in Schedule 16) by which those instructions are given for the ordinary course of events, but they have not done so for education action zones, and I hope that the Minister's letter will make the way in which the chain of command will work absolutely clear.


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