Academy conversions and overseas workers

For schools switching to academy status, there are many issues to address. Caitlin Anniss considers the impact on overseas workers

The latest figures from the Department for Education (DfE) show that more than 1,200 schools have applied to become an academy since June 2010 and over 830 of these applications have been approved. This number is set to rise as applications will now be welcomed from schools that can demonstrate that they are performing well.
There are a number of key issues for any school to consider when deciding whether to convert to an academy. One issue that should not be overlooked is the employment of overseas workers and the requirement to comply with the United Kingdom Border Agency (UKBA) immigration rules.

When a school converts to an academy, it will become a new legal entity and as such, this change in status will entail a change of employer for all staff. Staff will transfer to the new academy by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Under the Academy Funding Agreement, the academy trust is (subject to the TUPE restrictions) at liberty to set the staffing profile, the terms and pay of staff, the staff disciplinary framework and the system for performance management of staff.

Where the school employs overseas workers, these members of staff will transfer in the usual way to the new academy, but the academy must ensure that it complies with its obligations in relation to the UKBA's immigration rules.

Transfer talk
Once the transfer has taken place, on completion of the conversion to academy status, the existing employer will need to notify the UKBA of the change of sponsorship within 28 days of the transfer. The UKBA will make this sponsorship licence dormant.

The academy, as the new employer, must apply for a sponsorship licence, if they do not already have one, within 28 days of the date of the transfer. The academy can request access to the outgoing employer's dormant sponsorship licence to report any changes in relation to overseas staff.

A failure to make an application for a new sponsorship licence, or an unsuccessful application, may result in the UKBA reducing the permission of any sponsored employees to remain in the UK to 60 days. If the sponsored employee remains in employment beyond these 60 days, the migrant will be employed illegally, opening the academy up to potential civil and criminal sanctions.

If the sponsorship licence application is refused, the academy must take steps to dismiss the migrant fairly, so that they cease to be an employee within the 60-day period. It is important that this dismissal is handled fairly and that there is no discrimination. Advice should be sought before proceeding with a dismissal of this nature.

Keep checking
An academy that acquires overseas staff on conversion must also carry out original document checks in relation to employees within 28 days of the date of the transfer. This is to ensure that all employees have continued permission to work in the UK. Failure to do so may mean that the employer will not be able to establish the statutory excuse available to employers to avoid liability in the event of employing overseas staff unlawfully.

This is a complex area and action is required within fairly tight timescales following a TUPE transfer. Schools are therefore advised to plan in advance of a conversion to academy status.

Caitlin Anniss is an associate in the Employment Department of Veale Wasbrough Vizards. Caitlin can be contacted on 0117 314 5264 or canniss@vwv.co.uk.

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