TUPE transfers in academy trusts

The 2026 White Paper, ‘Every Child Achieving and Thriving’, focuses on accelerating academisation and confirms the government’s commitment to bringing all schools into academy trusts to ensure consistently high standards.

It appears, therefore, that there will continue to be movement within the sector as more schools look to convert to academy status and/or join an academy trust.

These types of transactions will usually be a ‘relevant transfer’ for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). TUPE operates to protect employees affected by a relevant transfer, preserving continuity of employment and their terms and conditions of employment.

What protections does TUPE provide to employees?

Where there is a TUPE transfer, affected employees will automatically transfer from the transferor to the transferee on their existing terms and conditions. The transferee takes on the rights, powers, duties and liabilities relating to those employees, effectively stepping into the shoes of the transferor.

Continuity of employment is preserved and the employees’ length of service for redundancy, family leave and other statutory rights carries across to the new employer. Contractual terms, including pay, hours and benefits, will also transfer.

Variations to contractual terms are void if the sole or principal reason for the change is the transfer itself, unless a genuine economic, technical or organisational reason that entails changes in the workforce (ETO reason) exists and employees agree. Attempts to ‘harmonise’ terms immediately after a transfer therefore need to be managed carefully, and structured consultation will be required where permitted changes are considered necessary.

Dismissals connected to the transfer are automatically unfair unless the employer can show that a valid ETO reason exists. In an academies context, restructures driven by financial pressures, changed curriculum needs or the centralisation of functions may theoretically meet that threshold, but they require robust, evidence-based business cases and genuine, meaningful consultation.

TUPE information and consultation requirements

Where there is a TUPE transfer, both the transferor and transferee are required to inform and, where appropriate, consult with the appropriate representatives of any of their employees who are affected by the transfer or any measures taken in connection with it.

The appropriate representatives will be trade union representatives, where there is a recognised trade union, or formally elected employee representatives. Where there are no recognised trade unions or employee representatives in place, employers are required to arrange elections so that the affected employees can nominate representatives.

TUPE requires certain statutory information to be provided to the appropriate representatives. Although there will be a duty to inform on every TUPE transfer, the duty to consult only arises where an employer envisages taking ‘measures’ in respect of affected employees.

‘Measures’ are changes to working conditions that are envisaged as a result of the transfer. If measures are proposed, employee representatives will need to be informed of those measures and consulted with accordingly.

Liability for a failure to inform and consult is joint and several. Protective awards for failures to inform and consult can reach up to 13 weeks’ pay per affected employee.

Employee liability information under TUPE

There is also an obligation under TUPE for the transferor to provide the transferee with certain information about the transferring employees (the ‘employee liability information’) not less than 28 days before the relevant transfer takes place.

In practice, as part of the due diligence process, more detailed information is often disclosed by the transferor at a much earlier stage. Nevertheless, this obligation should not be overlooked.

If the transferor fails to provide the employee liability information, the transferee can bring a claim in the employment tribunal. If successful, the tribunal can award compensation of a minimum of £500 for each employee in respect of whom the information was not provided.

Managing change after an academy transfer

When a school is converting to academy status and setting up its own trust, there will often be little change. However, where a school is joining an established academy trust, there can be practical challenges in managing different terms and conditions and working arrangements across respective schools.

While a unified approach may be preferable, the protections under TUPE can restrict an employer’s ability to achieve this. The period immediately following a transfer is often when legal risk is greatest. The temptation to harmonise terms is understandable, but such changes will usually be void if the transfer is the sole or principal reason for change.

However, where genuine operational needs exist to change terms, trusts should prepare a rigorous, evidence-based business case that explains the economic, technical or organisational drivers. They should also consult meaningfully with staff and unions.

Proposed changes to working patterns and locations will also need to be managed with particular care. Mobility clauses may assist but cannot always be relied upon and must be exercised reasonably.

Offering to apply these changes on a phased basis, together with travel reimbursement, may help you reach an agreement, but a thorough consultation with staff will still be important.

Where redundancies are in scope, the presence of TUPE doesn’t remove the requirement for collective consultation where thresholds are met. Similarly, the general principles of a fair redundancy dismissal will also apply, and so it will be necessary to carefully consider pooling, selection and alternate employment opportunities, as well as undertaking individual consultation processes with affected staff.

Summary

Given the ongoing challenges within the sector, it’s no surprise that collaboration remains a priority and that schools and academies continue to explore opportunities to join together.

There are significant benefits to this approach, which are identified within the 2026 White Paper. It is, however, important to get the legal process right, and for schools and academies to understand the obligations that apply in these circumstances.

Our Education team regularly supports schools and academies with conversions and mergers.