Blake Lapthorn held two half day Acadmies conferences jointly with Strictly Education on Tuesday 13 and Friday 16 September 2011.

1. Blake Lapthorn Academies seminar
Tuesday 13 September and
Friday 16 September 2011

2. Welcome
Elizabeth Davis, Partner

3. Blake Lapthorn Education service
South’s premier full service law firm
Education:
– Schools and FE service (includes nursery)
– Higher education service
Main areas of work
– Corporate and commercial,
– Governance,
– Employment,
– Property and construction and
– Disciplinary and regulatory

4. Academy pros, cons and conversion
process
Elizabeth Davis
Partner
elizabeth.davis@bllaw.co.uk

5. Track record
First conversion in Hampshire
Advised on completed conversions for 15 schools
7 local authority areas
Act for 1 local authority on academy conversions
Advise 3 large faith based organisations
Advising 25 schools towards conversion

6. Academy pros, cons and conversion process
The legal background
Pros and cons
Understanding the conversion process
– Timetables and deadlines
– Documentation
– Common pitfalls

7. Academies Act 2010
Academy arrangements with the Secretary of State
– An academy agreement
– Arrangements for academy financial assistance
Academy agreement
– Undertakings
– Payment in consideration of undertakings
Undertakings
– Establish an independent school with
Specific characteristics or
School to provide for special educational needs

8. Pros
Independence
Autonomy
Income generation
Greater freedom
– Staff
– Curriculum
– Organisation
Motivational
Political direction

9. Cons
Diminishing LA support
Loss of bulk purchasing
New responsibilities and duties
– Obligations to S of S
– Company and charity law
Questionable financial advantage
Burden of conversion process
Burden of autonomy
Opposition
Cost
Freedom of Information and public procurement obligations
Any others…?

10. The application process
Application for an Order
Consultation with foundation or trust (if applicable) before
making application
Consultation with community and local authority
Application requires the consent of the trustees of the school
and the persons by whom the governors are appointed
Secretary of State indicates willingness to make order
Draft documents submitted and approved by the DFE according
to strict timetable
Secretary of State makes the Order

11. Documents submitted to DfE
Articles of association of Academy Trust Company
Funding Agreements(s)
Report on title
Draft lease and or Directions for transfer

12. Land issues
Identifying the land and locating the deeds
Investigating title
Site plan
Lease /Directions for Transfer
Report on title
Shared use
Publicly funded land

13. Structure
Single or multi academy?
Joining an existing academy
Converging with an existing academy school
Is there a special diocesan or other framework?

14. The process to completion
Academy Trust Company formed
Governors resolutions
Signing and submission of formal documentation
Commercial transfer process
Registrations and other business to set up the new
academy
Funding agreement signed
Conversion on a specific date
Transfer of surplus

15. Understanding the conversion process
On conversion, current governing body is dissolved
Current school has to be transferred to a new
Academy Trust Company
Agreements must be made and signed up before
conversion point

16. The commercial transfer
Legal assessment
Engagement with the local authority
Establishing the new business framework
Commercial transfer agreement
Transfer of existing staff and operations
Transfer of land and buildings

17. Insurance
Historic insurance for employer’s liabilities
New insurances for the academy trust company from
the point of conversion
Must be set up before the point of conversion

18. What does not transfer
Anything omitted from the commercial transfer
agreement
Liabilities (except historic employment liabilities)
Deficit – but gets paid back indirectly

19. Faith schools
Protecting the religious ethos of the school post
conversion
Registration
Leadership and Governance
Structure
Recruitment of staff

20. Becoming an Academy
Why and How
• Conversion not Confusion
• Overcoming any challenges
September 2011

21. Strictly Education
• Formed in 2002 – work exclusively in the Education
Sector
• Support over 1000 schools in over 80 Local Authorities
• Support Academies, Community & VA schools ‐
converting to Academy status and post conversion
• Part of the Bond International Group, global provider of
HR Capital Management Software solutions and services
operating in 42 countries
• Complete range of school support services

22. Strictly Education
• Completed 70 Conversions up to Sept1st 2011
• A further 40 schools at different points of the decision
making process
• Work in partnership with Blake Lapthorn
• Unique Academy PortalTM .....
Taking the Confusion out of Conversion

23. What Confusion?
The issues fall into 4 key support areas:
• Self determination versus employment risk
• Financial benefit versus reporting and risk
• Premises and Contracts control versus
management responsibility
• Legal Process versus independent Legal
advice

24. HR & Employment Risk
• Stakeholder Consultation
• Measures
• TUPE & Consultation
• Due Diligence
• Pensions
Identifying Challenges and the Solutions

25. HR & Employment Risk
• Audit of Policies
• Working with Unions and recognition
• Working with Staff
• Staff Communication
Identifying Challenges and the Solutions

26. Finance and Reporting
• Process and Timeframe for reporting
• Section 251 review (& LACSEG)
• GAG Academy funding
• Transfer of Assets and liabilities
• Cash flow/Balance Sheet/Budget Setting
Indentifying Challenges and Solutions

27. Finance, Accounting and
Pension
• VAT, registration, managing & reporting
• Accounting arrangements & systems
• Pensions (LGPS and TP)
– Employee contributions (LGPS)
– Employer pension contributions (LGPS)
– Deficit & Liability (LGPS)
Identifying Challenges and Solutions

28. Property Support & Asset
Management
• Gap Analysis & Condition Survey
• Outstanding disputes, Land Share
• New Builds and Children Centres
• Risk Assessments
• Remedial steps
Identifying Challenges and the Solutions

29. Contract Leases & Insurances
• Audit of SLAs/contracts (LA/Third Party)
• Assessment of service quality
• Evaluate options (TUPE/Measures?)
• Audit of Insurances
• Consideration /Evaluation of alternatives
Indentifying Challenges and the Solutions

30. Evaluating the Options
• Costs vs Benefits of Academy Status
Autonomy - freedom to set remuneration and reward good performance
Independence - increased funding directly to the Academy, you decide
what to spend your money on
Flexibility - set your own agenda and Curriculum
Control - your premises and destiny
• Importance of getting the governors and staff
onboard (and unions)
• Analysis before decision
• Tried and tested solutions
• Overall Project Management plan

31. www.strictlyeducation.co.uk/academy
Unique Academy Work with high profile legal
PortalTM information in partners
one place Seamless ongoing post
Experience - extensive conversion support
track record Simple budgeting – fixed
One stop shop - all cost unlimited access
aspects 1 place Close working relationship
Bespoke solutions - with the YPLA & DfE
tailored to you
.

32. www.strictlyeducation.co.uk/academy

33. Questions and Answers
“I found Strictly Education’s Portal very useful and easy to use, it
equipped me well and gave me the confidence, support and
knowledge I needed to discuss further with my Governing
Body”
Graham Wright, Wardle High School
Tel: 07976583959
nickolas.morrissey
@strictlyeducation.co.uk

35. Academy Directors
The duties, responsibilities and liabilities
of an Academy Director

36. Overview
General background regarding the structure and
management of an Academy Trust Company
The duties of a director in the context of
– company law
– charity law

37. Overview (a few exclusions)
Concentrating on duties of governance in the context
of company and charity law
Not specifically addressing other duties under:
– Insolvency legislation
– Other regulatory frameworks, e.g. Education Acts,
Health & Safety legislation, etc.

38. Background
Structure and management of an ATC
– company limited by guarantee
– exempt charity
– regulation
Single or Multi-Academy

39. The members of an ATC
Initial members appointed by existing governors, then
additional members by unanimous resolution
Expected to be ‘few in number’
Stakeholders designed to provide a layer of
accountability, can:
– appoint and remove directors
– approve changes to the constitution
– require calling of general meetings and circulation of
resolutions

40. The governing body (1)
Broadly same as maintained schools but with more
autonomy
Ability to delegate
Now governors are directors of the ATC for company
law purposes and charity trustees for the purposes of
charity law
Responsible for day to day running

41. The governing body (2)
Board of governors will
– ensure the quality of education provision and delivery
of charitable outcomes
– challenge and monitor performance of the ATC
– manage the ATC’s finances and property
– employ staff
– manage and comply with obligations of the funding
agreement
– comply with (and ensure that the ATC complies with)
charity and company law

42. Model Articles: prescribed structure
Prescribed governance structure:
– up to ‘x’ governors (but not too many!)
– optional staff governors (not more than 33%)
– 1 LA governor (optional)
– minimum 2 elected parent governors
– the Principal
– up to 3 co-opted governors
PLUS – Sec of State right to appoint

43. Model Articles: term, resignation and removal
4 year term (other than for principal)
Subject to re-election/re-appointment if still eligible
Resignation by notice (as long as 3 remain)
Removal by appointor
Must be over 18
Cannot be a current pupil

44. Model Articles: Disqualification (1)
Incapable of managing or administering own affairs
Absent without permission from all meetings for six
months
Subject of bankruptcy or similar judgment
Director’s disqualification order or undertaking
Other Companies Act 2006 provisions
S.72 Charities Act 1993
Removal from office of charity trustee by Charity
Commission or High Court

45. Model Articles: Disqualification (2)
If:
– included on list kept by S of S under s.1 of the
Protection of Children Act 1999
– disqualified from working with children under s.35
Criminal Justice and Court Services Act 2000
– barred from regulated activity relating to children
(s.3(2) Safeguarding Vulnerable Groups Act 2006)
– Subject of a direction, prohibition or restriction under
s.142 Education Act 2002
– convicted of any criminal offence (exceptions)

46. Model Articles: Disqualification (3)
After Academy has opened… if:
– has not provided to the chairman of the governors a
criminal records certificate at an enhanced disclosure
level; or
– if the certificate provided discloses any information
which in the opinion of the Chairman or the Principal
confirms that person is unsuitable to work with children
(can be referred to the Secretary of State)
N.b. All of the above apply to any member of any
committee of the governors – even if not a governor

47. Company law: directors’ duties (1)
Subjects of the general duties
– Existing directors
– Shadow directors
– Former directors – in relation to conflicts/external benefits
Administrative duties
General duties
Conflicts of interest

48. Company law: directors’ duties (2)
Administrative duties
– maintain statutory books
– file accounts
– maintain tax and national insurance records
– keep minutes of meetings of directors and members
(for 10 years)
– ensure name is correctly displayed at registered office
and on stationery
– Companies House filings

49. Company law: directors’ duties (3)
Seven general duties:
– Act within powers
– Promote the success of the company for the
achievement of its stated purposes
– Exercise independent judgment
– Exercise reasonable care, skill and diligence
– Avoid conflicts of interests
– Not to accept benefits from third parties
– Declare interest in proposed transaction or
arrangement with the company

50. Company law: directors’ duties (4)
Need to act
Desire to maintain fairly between Likely long term
reputation for high members consequences
standards of business
conduct
To promote the success of
the company for the achievement
of its stated purposes
Impact of
operations on Need to foster business Interests of
community & relationships with employees
environment customers, suppliers and
others

51. Company law: Promoting success?
The meaning of “success”
How is this to be determined?
Judgment period – short, medium, long – over which
success is to be judged
If factors conflict, which prevails?
Not enough to pay “lip service” to the factors
Making and documenting decisions

52. Company law: some conclusions
Good faith decisions will not be impugned
Breach of duty is not established by the result but
from the process and reasoning behind it
Other listed factors must get a look in when
considering the need to promote the success of the
company for the achievement of its stated purposes
Courts will be looking to support the sensible board
and will not penalise risk-taking in the correct context

53. Company law: conflicts of interest
Where are director has an actual or potential conflict of interest
or loyalty
Highly likely to arise, especially if the ATC has LA governors
Conflict can be authorised by non-conflicted directors under an
authority contained in company’s constitution – but note – no
such authority in the model articles
Therefore need special resolution of members to empower the
non-conflicted directors to authorise the conflict
Then a matter for non-conflicted directors to decide. Would not
be appropriate for them to authorise a conflict if a conflicted
director or a connected person could receive a benefit
Recommend that the ATC adopts a suitable conflicts of interest
policy and a procedure for the declaration of interests

54. Charity law: trustees’ responsibilities
To carry out the objects of the company
To protect and manage the property and assets
To act in good faith, always in the best interests of
the company
To act prudently
To hold and attend directors’ meetings
To delegate appropriately
To keep company’s books and records up to date, to
keep accounts and to make all necessary filings with
Companies House

55. Charity law: Finance Act 2010
Entitlement to various tax reliefs and exemptions
New test to ensure not managed or controlled by
individuals who ‘present a risk to the charity’s tax
position’
Could result in loss of reliefs and exemptions
‘Fit and proper persons test’:
– Give due consideration as to suitability of directors and
senior personnel
– Suggested procedure – guide and declaration
(see HMRC web site)

56. Liability for failure and insurance
Personal liability will not arise for governors carrying
out their duties in good faith:
– honestly
– prudently
– within powers
– in accordance with normal standards expected of a
person responsible for a business
DfE’s view that insurance covering governors for
personal liability is unlikely to represent good value
for money (but model articles permit the taking out of
such insurance)

57. Other requirements
Need employer’s and public liability insurance
(suggested minimum cover of £10m for each)
Need for enhanced CRB checks for all personnel
who could into contact with children, young people
and vulnerable groups

58. Planning for Post Conversion:
Regulation in its Various Forms
Stephen Murfitt
stephen.murfitt@bllaw.co.uk

59. Consultation, Regulations and Documenting
Procedures
Consultation: Proposed Changes to Performance Management and Capability
Arrangements for Teachers
Consultation: 24 May – 16 August 2011
Department for Education has not yet responded to the consultation
The current Education (School Teacher Performance Management) (England)
Regulations 2006 will be replaced by the Education (School Teachers' Appraisal)
Regulations 2011
The new Regulations (as yet unpublished) are expected to come into force in 2012
These will not apply to academies. Para 15 of the consultation document:
"The current regulations apply to teachers and head teachers employed either by a local authority
or by the governing body of a school in England. No change is proposed to the scope of revised
regulations. We know that many academies have put in place effective arrangements for
managing the performance of their staff despite being outside the scope of the current regulations
and we do not propose to change that".
However, when published, academies may consider these as a benchmark against
which to review their own arrangements

60. Consultation included draft 'Guidance and Model Policy for Appraising and
Managing Teacher Performance'. Para 19 of the consultation document:
"To show how performance management and capability procedures fit together and to
encourage schools to streamline their processes, we propose to replace the current non-
statutory guidance and model policy for performance management and the current statutory
guidance and model capability procedures with a single non-statutory model policy that
covers appraising and managing teacher performance – both performance management
and capability procedures.“
The revised and streamlined model policy is optional for all schools and no
longer includes the 'informal capability stage'.
Publication of the final version of the model policy expected in Autumn 2011
Again, academies may consider this as a benchmark against which to review
their own policies

61. Flow Chart for Dismissing Teachers Using New Disciplinary / Capability
Procedures

62. Full, detailed draft guidance and model policy – copy included in packs.
The importance of properly documented and tailored procedures to deal with
teachers' misconduct or incompetence

63. The ‘Recycling' Issue
Para 23 of the consultation document:
"We recognise that poor performance in one school may not mean that a teacher cannot
perform effectively in another. That is one of the reasons we have not made provision in the
legislation currently before Parliament for employers to refer cases of professional
incompetence to a national regulator for barring them from the profession. We also believe
head teachers, governing bodies and employers are better placed to tackle competence issues
than a national regulator. This does mean it is important that all parties play fair with other
schools."
Para 26 of the consultation document:
"We propose that regulations should require employers (and former employers) to provide
copies of a teacher’s previous appraisal statements to a potential employer when asked by
them to do so in support of an application for a teaching post. We believe this could helpfully
supplement the information provided by references and may also have the effect of limiting the
extent to which compromise agreements between teachers and employers can subvert the
reference process."
Crown Copyright: Flow-chart and quotes from the consultation 'Proposed Changes to Performance
Management and Capability Arrangements for Teachers' are Crown copyright-protected material
reproduced under the terms of the Open Government Licence from the Department for Education's
website. Corporate author: Department for Education.

64. The Investigation Process in Schools
Transparency
Fairness
R (on the application of G) (FC) (Respondent) v. The Governors
of X School (Appellant) [2011] UKSC 30
School disciplinary proceedings finding a teaching assistant had
instigated an inappropriate relationship with a child, would not
substantially influence the ISA's proceedings in relation to his
entry on the Children's Barred List. His Article 6 ECHR rights
were not engaged at the disciplinary proceedings at which he
was not entitled to legal representation.

65. The General Teaching Council for England
The GTCE shall establish and maintain a register of teachers - section 3
Teaching and Higher Education Act 1988
All teachers with QTS that teach in a maintained school, non-maintained special
school or pupil referral unit, must register with the GTCE
Subject to the specific terms of an academy's funding agreement, a teacher will
need to register with either the GTCE or the IfL
Education Bill introduced on 26 January 2011 - GTCE to be abolished 1 April
2012
The abolition does not affect the need to register for 2011-12

66. All registered teachers who are dismissed for either misconduct or
incompetence are subject to referral to the GTCE
All registered teachers who resign during a process which could lead to
dismissal on the ground of misconduct or incompetence are equally subject to
referral
In a GTCE Professional Conduct or Competence Committee hearing, individuals
from the school will often be called as witnesses to give evidence

67. The Teaching Agency 2012
Department for Education: “Teaching Agency to be up and running from
April 2012”
Date: 17 June 2011
The Teaching Agency is a new executive agency that will be responsible for
ensuring the supply of high quality teachers and training, and for teacher
regulation. It will open in April 2012 and take on some key functions currently
carried out by the Training and Development Agency for Schools, General
Teaching Council for England, Children’s Workforce Development Council and
the Qualifications and Curriculum Development Agency subject to the necessary
parliamentary approvals.
The agency will support teachers, instructors, early years’ workers, classroom-
based support staff, SENCOs, educational psychologists and examination
officers.
Subject to parliamentary approval of related legislation, the Teaching Agency will
be responsible for three key areas of delivery
supply and retention of the workforce
the quality of the workforce
regulation of teacher conduct”.

68. The Teaching Agency will be operational from April 2012
It will take on some key functions currently carried out by the GTCE (among
others)
The agency will cover teachers and instructors, all early years workers,
classroom-based school support staff, special educational needs co-ordinators
(SENCOs), educational psychologists and examination officers
The TA's regulatory function will include teachers and instructors in academies.
The agency will:
(i) consider cases of serious professional teacher misconduct and where
appropriate, bar teachers from teaching
(ii) organise and conduct case hearings
(iii) administer and manage the list of prohibited teachers
The TA regulatory function will not consider issues of lack of competence

69. The Education Bill and Current Consultation
Education Bill – Proposed New Regulatory Arrangements
Main features of the new regulatory system:
Schools have discretion to decide which cases of serious misconduct to be
referred to Secretary of State
No referrals on ground of incompetence
Referrals can be made by police, Independent Safeguarding Authority, other
regulators and public
The Secretary of State's power to investigate and impose a prohibition (barring)
order.
The Secretary of State will hold a list of those subject to a prohibition order. The
list will be publicly available
No range of sanctions short of prohibition

70. Consultation: Proposed Changes to the Teacher Disciplinary and Induction
Regulations following the Abolition of the General Teaching Council for
England
Consultation: 20 July – 12 October 2011
Proposed changes to disciplinary Regulations. New Regulations in force 1 April
2012
No requirement to register under the new system
The new regulatory regime will apply by reference to "teaching work"
Regulations will define "teaching work". Steer comes from the Specified Work and
Registration (England) (Amendment) Regulations 2003
The investigation of misconduct cases
Teachers' standards
Membership of professional conduct panels – at least three people, one or more of
whom is a serving teacher or those who have taught in past five years and one or
more people who have never been teachers.
Procedure of professional conduct panels
Prohibition Orders and Interim Prohibition Orders
Review of Prohibition Orders

71. Freedom of Information
The Freedom of Information Act 2000 (FOIA) applies to academies as it does to
maintained schools
Presumption of openness underlies the FOIA
The FOIA came into force immediately for those schools that converted to
academies on or after 1 September 2010
From 1 January 2011, the FOIA has applied to existing academies, opened
before 1 September 2010

72. Guidance and advice on all FOIA matters
Academy trusts are responsible for ensuring an academy complies with the
FOIA
Steps that the Academy Trust should take
Establishing the FOIA publication scheme and access policy - staff familiarity
Freedom of Information Officers
Records management

73. Dealing with FOIA requests
Time limit – 20 working days
Costs limits (£450) and charging
Exemptions
Refusing a request

74. Academy Directors
The duties, responsibilities and liabilities
of an Academy Director

75. Overview
General background regarding the structure and
management of an Academy Trust Company
The duties of a director in the context of
– company law
– charity law

76. Overview (a few exclusions)
Concentrating on duties of governance in the context
of company and charity law
Not specifically addressing other duties under:
– Insolvency legislation
– Other regulatory frameworks, e.g. Education Acts,
Health & Safety legislation, etc.

77. Background
Structure and management of an ATC
– company limited by guarantee
– exempt charity
– regulation
Single or Multi-Academy

78. The members of an ATC
Initial members appointed by existing governors, then
additional members by unanimous resolution
Expected to be ‘few in number’
Stakeholders designed to provide a layer of
accountability, can:
– appoint and remove directors
– approve changes to the constitution
– require calling of general meetings and circulation of
resolutions

79. The governing body (1)
Broadly same as maintained schools but with more
autonomy
Ability to delegate
Now governors are directors of the ATC for company
law purposes and charity trustees for the purposes of
charity law
Responsible for day to day running

80. The governing body (2)
Board of governors will
– ensure the quality of education provision and delivery
of charitable outcomes
– challenge and monitor performance of the ATC
– manage the ATC’s finances and property
– employ staff
– manage and comply with obligations of the funding
agreement
– comply with (and ensure that the ATC complies with)
charity and company law

81. Model Articles: prescribed structure
Prescribed governance structure:
– up to ‘x’ governors (but not too many!)
– optional staff governors (not more than 33%)
– 1 LA governor (optional)
– minimum 2 elected parent governors
– the Principal
– up to 3 co-opted governors
PLUS – Sec of State right to appoint

82. Model Articles: term, resignation and removal
4 year term (other than for principal)
Subject to re-election/re-appointment if still eligible
Resignation by notice (as long as 3 remain)
Removal by appointor
Must be over 18
Cannot be a current pupil

83. Model Articles: Disqualification (1)
Incapable of managing or administering own affairs
Absent without permission from all meetings for six
months
Subject of bankruptcy or similar judgment
Director’s disqualification order or undertaking
Other Companies Act 2006 provisions
S.72 Charities Act 1993
Removal from office of charity trustee by Charity
Commission or High Court

84. Model Articles: Disqualification (2)
If:
– included on list kept by S of S under s.1 of the
Protection of Children Act 1999
– disqualified from working with children under s.35
Criminal Justice and Court Services Act 2000
– barred from regulated activity relating to children
(s.3(2) Safeguarding Vulnerable Groups Act 2006)
– Subject of a direction, prohibition or restriction under
s.142 Education Act 2002
– convicted of any criminal offence (exceptions)

85. Model Articles: Disqualification (3)
After Academy has opened… if:
– has not provided to the chairman of the governors a
criminal records certificate at an enhanced disclosure
level; or
– if the certificate provided discloses any information
which in the opinion of the Chairman or the Principal
confirms that person is unsuitable to work with children
(can be referred to the Secretary of State)
N.b. All of the above apply to any member of any
committee of the governors – even if not a governor

86. Company law: directors’ duties (1)
Subjects of the general duties
– Existing directors
– Shadow directors
– Former directors – in relation to conflicts/external benefits
Administrative duties
General duties
Conflicts of interest

87. Company law: directors’ duties (2)
Administrative duties
– maintain statutory books
– file accounts
– maintain tax and national insurance records
– keep minutes of meetings of directors and members
(for 10 years)
– ensure name is correctly displayed at registered office
and on stationery
– Companies House filings

88. Company law: directors’ duties (3)
Seven general duties:
– Act within powers
– Promote the success of the company for the
achievement of its stated purposes
– Exercise independent judgment
– Exercise reasonable care, skill and diligence
– Avoid conflicts of interests
– Not to accept benefits from third parties
– Declare interest in proposed transaction or
arrangement with the company

89. Company law: directors’ duties (4)
Need to act
Desire to maintain fairly between Likely long term
reputation for high members consequences
standards of business
conduct
To promote the success of
the company for the achievement
of its stated purposes
Impact of
operations on Need to foster business Interests of
community & relationships with employees
environment customers, suppliers and
others

90. Company law: Promoting success?
The meaning of “success”
How is this to be determined?
Judgment period – short, medium, long – over which
success is to be judged
If factors conflict, which prevails?
Not enough to pay “lip service” to the factors
Making and documenting decisions

91. Company law: some conclusions
Good faith decisions will not be impugned
Breach of duty is not established by the result but
from the process and reasoning behind it
Other listed factors must get a look in when
considering the need to promote the success of the
company for the achievement of its stated purposes
Courts will be looking to support the sensible board
and will not penalise risk-taking in the correct context

92. Company law: conflicts of interest
Where are director has an actual or potential conflict of interest
or loyalty
Highly likely to arise, especially if the ATC has LA governors
Conflict can be authorised by non-conflicted directors under an
authority contained in company’s constitution – but note – no
such authority in the model articles
Therefore need special resolution of members to empower the
non-conflicted directors to authorise the conflict
Then a matter for non-conflicted directors to decide. Would not
be appropriate for them to authorise a conflict if a conflicted
director or a connected person could receive a benefit
Recommend that the ATC adopts a suitable conflicts of interest
policy and a procedure for the declaration of interests

93. Charity law: trustees’ responsibilities
To carry out the objects of the company
To protect and manage the property and assets
To act in good faith, always in the best interests of
the company
To act prudently
To hold and attend directors’ meetings
To delegate appropriately
To keep company’s books and records up to date, to
keep accounts and to make all necessary filings with
Companies House

94. Charity law: Finance Act 2010
Entitlement to various tax reliefs and exemptions
New test to ensure not managed or controlled by
individuals who ‘present a risk to the charity’s tax
position’
Could result in loss of reliefs and exemptions
‘Fit and proper persons test’:
– Give due consideration as to suitability of directors and
senior personnel
– Suggested procedure – guide and declaration
(see HMRC web site)

95. Liability for failure and insurance
Personal liability will not arise for governors carrying
out their duties in good faith:
– honestly
– prudently
– within powers
– in accordance with normal standards expected of a
person responsible for a business
DfE’s view that insurance covering governors for
personal liability is unlikely to represent good value
for money (but model articles permit the taking out of
such insurance)

96. Other requirements
Need employer’s and public liability insurance
(suggested minimum cover of £10m for each)
Need for enhanced CRB checks for all personnel
who could into contact with children, young people
and vulnerable groups

97. Academies Seminar
Planning for Post Conversion –
Employment
Debbie Sadler
Senior solicitor
debbie.sadler@bllaw.co.uk

98. Reorganisation of Employees Post Conversion
Transfer of Undertakings (Protection of Employment)
Regulations 2006 (“TUPE”)
– Protections employees by:
Transferring all rights and liabilities to Academy (not pensions)
Making dismissals on account of the conversion or for a reason
associated with the conversion automatically unfair*
Prevents changes to terms and conditions where the reason for
the change is the conversion or a reason associated with it*
*UNLESS reason unconnected to conversion OR can show
ETO reason

99. Reorganisation of Employees Post Conversion
ETO (ie economic, technical or organisational) reason entailing
changes in workforce
– No statutory definition
– Very limited scope
– Query whether applies to changes in terms and conditions
Includes, eg:
– Reduction in number of teachers through introduction of video
conferencing
– Bringing together [X] schools into one academy
Harmonisation of Terms and Conditions is not an ETO reason

100. Reorganisation of Employees Post Conversion
Employees can agree to positive changes e.g
introduction of bonuses, pay rises
BUT, detrimental changes will be void e.g removal of
contractual sick pay
No limit in terms of time

101. Recruitment
New recruits
– Can be recruited on different terms and conditions
UNLESS : discriminatory?
collective agreement?
- Need to carry out checks : CRB, right to work in UK etc
- Consider recruitment process : interviews, pre medical
healthcare questionnaires etc

102. Recognition – to recognise or not?
Independent Trade Union recognition transfers:-
– Where organised grouping of resources maintains
distinct identity post transfer
– Recognition transfers to ‘same extent’
– Voluntary/Statutory recognition

103. Recognition –v- Derecognition?
Voluntary recognition :-
– not legally binding
– Subject to terms of agreement, can derecognise
– No legal remedy
Legally recognised
– More difficult to derecognise (statutory procedure)
– Legal remedies for failure to recognise

104. Questions?

105. Blake Lapthorn
www.bllaw.co.uk
Contact: elizabeth.davis@bllaw.co.uk
023 8085 7011