Statutory Instrument 1989 No. 901

The Education (Modification of Enactments Relating to Employment) Order 1989

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© Crown Copyright 1989

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1989 No. 901

EDUCATION, ENGLAND AND WALES

The Education (Modification of Enactments Relating to Employment) Order 1989

The Secretary of State for Education and Science, in exercise of the powers conferred on him by sections 222 and 232(5) of the Education Reform Act 1988^[1] and after consulting-
(a) such associations of local authorities;

(b) such bodies representing the interests of governors of voluntary schools; and

(c) such organisations representing staff in schools required to be covered by schemes under section 33 of that Act or institutions required to be covered by schemes under section 139 of that Act

as appeared to him to be concerned, hereby makes the following Order:

Citation and commencement
    1.    This Order may be cited as the Education (Modification of Enactments Relating to Employment) Order 1989 and shall come into force on 1st September 1989.

Interpretation
    2.    In this Order, unless the context otherwise requires-

    (1)  "the Act" means the Education Reform Act 1988;
"governing body" means the governing body for the time being of an institution which provides higher education or further education (or both) and which is maintained by a local education authority or of a school which is so maintained, and references in relation to governing bodies to the local education authority are references to the local education authority by which the institution or school is maintained; and
"school" has the meaning assigned to it by section 114 of the Education Act 1944^[2] ;


    (2)  references to employment powers are references to the powers as to appointment, suspension, discipline and dismissal of staff conferred by or under sections 44, 45, 46, 148 and 149 of, and Schedule 3 and paragraph 4 of Schedule 4 to, the Act; and

    (3)  references to governing bodies with delegated budgets are references to governing bodies to whom powers as to the expenditure of the budget share of the school or institution for which they are responsible are for the time being delegated by virtue of sections 36 or 142 of the Act, or to whom powers in relation to the budget shares of new schools are for the time being delegated by section 48 thereof and Schedule 4 thereto, as the case may be.

General modifications of employment enactments
    3.—(1)  In their application to governing bodies with delegated budgets, the enactments set out in the Schedule hereto shall have effect as if-
 (a) any reference (however expressed) to an employer, a person by whom employment is offered, or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had at all material times been such an employer, person or principal;
 (b) in relation to the exercise of the governing body's employment powers, employment by the local education authority at a school or institution were employment by the governing body of that school or institution;
 (c) references to employees were references to employees at the school or institution in question;
 (d) references to dismissal by an employer included references to dismissal by the local education authority following notification of a determination by a governing body under paragraph 8(1) of Schedule 3 to, or section 148(6) of, the Act; and
 (e) references to trade unions recognised by an employer were references to trade unions recognised by the local education authority or the governing body.

    (2)  Nothing in paragraph (1) shall be taken as causing the governing body to meet the conditions stated in-
 (a) section 56A(1)(a) of the Employment Protection (Consolidation) Act 1978^[3] ; or
 (b) section 2(3)(b) of the Employment Act 1980^[4] ;
if it would not have done so but for the operation of that paragraph.

Dismissals
    4.    Without prejudice to the generality of article 3, where an employee employed at a school or institution with a governing body with a delegated budget is dismissed by the local education authority following notification of such a determination as if mentioned in article 3(1)(d) above-
 (a) section 53 of the Employment Protection (Consolidation) Act 1978^[5] shall have effect as if the governing body had dismissed him and as if references to the employer's reasons for dismissing the employee were references to the reasons for which the governing body made their determination; and
 (b) Part V of the Employment Protection (Consolidation) Act 1978^[6] shall have effect in relation to the dismissal as if the governing body had dismissed him, and the reason or principal reason for which the governing body did so had been the reason or principal reason for which they made their determination.

Trade disputes
    5.    A dispute between staff employed to work at a school or institution which has a governing body with a delegated budget and that governing body which relates wholly or mainly to one or more of the matters set out in section 29(1) of the Trade Union and Labour Relations Act 1974^[7] shall be a trade dispute within the meaning of that Act but, in any case where there is a trade dispute only by virtue of the operation of this article, nothing in section 13 of that Act^[8] shall prevent an act from being actionable in tort where, as the case may be, the inducement, interference or threat mentioned in that section relates to a contract the performance of which does not affect directly or indirectly the school or institution over which the governing body in question exercises its functions.

Applications to Industrial Tribunals
    6.—(1)  Without prejudice to anything in articles 3 and 4 and notwithstanding any provision in the Employment Protection (Consolidation) Act 1978 or in any regulations made under section 128 of that Act, this article applies in respect of any application to an industrial tribunal, and any proceedings pursuant to such an application, in relation to which by virtue of article 3 or 4 the governing body is to be treated as if it were an employer, person by whom employment is offered, or a principal.

    (2)  The application shall be made, and the proceedings shall be carried on, against that governing body.

    (3)  Notwithstanding paragraph (2), any decision, declaration, order, recommendation or award made in the course of such proceedings except in so far as it requires reinstatement or re-engagement shall have effect as if made against the local education authority.

    (4)  Where any application is made against a governing body pursuant to paragraph (2)-
 (a) the governing body shall notify the local education authority within 14 days of receiving notification thereof; and
 (b) the local education authority shall, on written application to the industrial tribunal, be entitled to be made an additional party to the proceedings and to take part in the proceedings accordingly.

[1] 1988 c. 40. back

[2] 1944 c. 31, amended by section 34(1) of the Education Act 1980 (c. 20) and by paragraph 7 of Schedule 12 to the Education Reform Act 1988. back

[3] 1978 c. 44. Section 56A was inserted by section 12 of the Employment Act 1980 (c. 42). back

[4] 1980 c. 42. back

[5] 1978 c. 44. Section 53(2) was amended by paragraph 4 of Schedule 2 to the Employment Act 1982 (c. 46). back

[6] Subsections (5) to (7) of section 55 were substituted by paragraph 1 of Schedule 3 to the Employment Act 1982. Section 56 was amended by paragraph 11 of Schedule 1 to the Employment Act 1980 (c. 42), section 56A was inserted by section 12 of that Act, and section 57(3) was amended by section 6 of that Act. Section 58 was substituted by section 3 of the Employment Act 1982, and was amended by Schedules 3 and 4 to the Employment Act 1988 (c. 19). Section 59 was amended by paragraph 17 of Schedule 3 to the Employment Act 1982, and section 62 by section 9 of and Schedule 4 to that Act. Section 64 was amended by the Unfair Dismissal (Variation of Qualifying Period) Order 1985 (S.I. 1985/782), by paragraph 5 of Schedule 2 and paragraph 19 of Schedule 3 to the Employment Act 1982, and by section 3(1) of the Sex Discrimination Act 1986 (c. 59). Section 64A was inserted by section 8(1) of the Employment Act 1980 and amended by paragraph 20 of Schedule 3 to the Employment Act 1988. Section 66(1) was repealed and section 66(2) was amended by paragraph 13 of Schedule 1 to the Employment Act 1980. Section 67(3) was substituted by section 9(5) of the Employment Act 1982. Section 68(2) was amended by paragraph 21 of Schedule 3 to the Employment Act 1982, and subsections (2), (3) and (5) of section 71 were amended by section 5(1) of, and paragraph 22 of Schedule 3 and Schedule 4 to, that Act. Section 72 was substituted by section 5(2) of the Employment Act 1982, and section 72A inserted by section 6 of that Act. Section 73 was amended by section 9 of, and Schedule 2 to, the Employment Act 1980, by section 4 of, and paragraph 5 of Schedule 2 and Schedule 4 to, the Employment Act 1982, and by the Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1988 (S.I. 1988/277). Section 74(3) was amended by paragraph 23 of Schedule 3 to the Employment Act 1982. Section 75(1) was amended by the Unfair Dismissal (Increase of Compensation Limit) Order 1986 (S.I. 1986/2284). Section 75A was inserted by section 5(3) of the Employment Act 1982, and subsections (1) and (2) were amended by the Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1988 (S.I. 1988/277). Section 76A was inserted by section 7 of the Employment Act 1982. Section 77 was amended by section 8 of, and paragraph 24 of Schedule 3 and Schedule 4 to, the Employment Act 1982. Section 80(1) was amended by paragraph 30 of Schedule 1 to the Education Act 1980 (c. 20). back

[7] 1974 c. 52. Section 29(1) was amended by section 18 of the Employment Act 1982 (c. 46). back

[8] Section 13(1) was substituted by section 3(2) of the Trade Union and Labour Relations (Amendment) Act 1976 (c. 7), section 13(2) was repealed by section 19(1) of, and Schedule 4 to, the Employment Act 1982 and section 13(3) by section 17(8) of, and Schedule 4 to, the Employment Act 1980 (c. 42). back

Explanatory Note