Teaching Assistant Dispute

Cllr Baggy Shanker provides limited clarity on the failed Teaching Assistant agreement.

The March 2017 agreement ended a very public, and damaging dispute between Derby City Council and UNISON/School Support/Teaching Assistant staff. This was agreed shortly after Cllr Baggy Shanker  became involved, and his personal intervention seemed pivotal in precipitating this change.  The dispute flared up again in early September as committed dates to implement change had passed.

In order to include the Council’s perspective, for this update,  Cllr Shanker consented to provide written answers to  specific questions. Despite originally agreeing to receive follow-up points he withdrew from the interview before getting to that stage.,

In his final letter to me on 16th October, Cllr Shanker confirmed:

“The Council remains committed to the Agreement reached with UNISON in March of this year and as we have already stated publicly, our position is that we have delivered against the conditions laid out in that Agreement.”

What was delivered?

The agreement had 3 conditions:

  1. One-off compensation payments ranging from £750 – £2750
  2. “Introduction” of 52 week flexible contract by 1st September 2017
  3. “establish a restructure programme to thoroughly examine, redefine and standardise the job descriptions and roles in these named [special/enhanced resource] schools”

The first condition was delivered – payments were made to 724 employees , the other 2 are still outstanding.

In Cllr Shanker’s video on 15th September,  he stated that the proposal on the “52 week flexible contract” was still yet to be taken to the schools, and that the job re-grading plan had not been successful.

Only 1 of the 3 conditions conditions was delivered.

Background  to the “52 week flexible contract”.

Changes to Terms and Conditions was the principal reason why School Support staff saw a significant reduction in pay. Staff who were employed on a “full-time” contract were deemed “part-time” despite no change in the job or attendance hours.

This aspect of the dispute was not about:

  • A pay increase
  • Being paid for school holidays
  • Job grades
  • Equal Pay

The Council determined that a full-time contract was to be 37hrs per week. Historically, full-time School Support/TA staff,  like Teachers, were on 32.5hr per week contracts – this reflects the pupil contact time only, and not  the full attendance time in a week. As the Council viewed the implementation from a “contracted hrs” perspective only,  ignored the staff’s contractual obligation to work all hours necessary to do the job, and did not recognise the unusual working patterns (term-time) – the result was a significant pay cut.

There was not a standard response from the schools in Derby. Some mitigated some of the losses – some temporarily, some permanently –  the different approaches were principally driven by affordability.

UNISON’s belief was, in March, that the Council had understood and accepted this anomaly, and would take the appropriate action to correct it.

No detail was contained in the March 2017 agreement to codify how this would work, in practice.

What has been done since March….?

UNISON issued a few versions of their interpretation of the March agreement, during July, with the final one being on 27th July.  On the 5th September ( 4 days after it was supposed to have been implemented), a reply was received by Paul Robinson (CEO)

“Regrettably, the Council is not in a position to commit to this interpretation of the settlement provision, as it is still different to what we had considered had been agreed between us in the negotiated outcome of March 2017 and subsequent discussions.”

He went on to say:

“…the Council is unwilling to mandate any increase in working hours within the schools. We maintain this position as it must remain within the gift of a school and the Head/Governing body to determine the level and nature of working of its staff, in order to meet the operational requirements of their school. We are simply not in a position to do this”.

It is important to note that the Council did mandate the original changes in Terms and Conditions across all schools.

UNISON were not demanding an “increase in working hours”.  It was an expectation that all staff would be paid for all hours worked to perform  the job, as specified, to a professional standard.

The opening sentence of the joint letter proposed by Paul Robinson,  but rejected by UNISON, highlighted where some of the misunderstanding derives from:

“The schools 52 week flexible contract is a way of potentially spreading and flexing the level and nature of working across a full calendar year as opposed to just term time. This is intended to be an opportunity for both the school and the employee to achieve a mutual benefit whilst ensuring that the operational requirements of the school and the role are met”

A flexible contract, in schools, is not about spreading working hours across non-term time. A flexible contract recognises that 12 months’ worth of hours can be delivered across 39 weeks of term time. This general principle of annualised hours is not uncommon.

I questioned Cllr Shanker why this part of the agreement was not done by 1st September:

“An outline of the proposal has been shared with UNISON and we await further response from them”

 The latest proposal was responded to by UNISON on 5th September. I sought clarification as to whether there was a later proposal.  No comment was given.

The 2 parties are far apart on how to implement the payment for the “extra” hours:

Full-time Council staff work 37hrs per week for ~ 46 weeks  = 1700hrs

Teaching Assistants have historically been on full-time, 32.5 hr contracts for 39 weeks term time. This is in line with Teacher contracts – the 32.5hrs represents the class room contact time, only. The contract expects additional time to cover non-pupil contact duties. As a standard, TAs will arrive early in the morning to get ready and prep the classroom, and leave later to ensure that all children have been picked up, and do end of day duties. Typically this routine would equate to about 37.5 hrs per week .

On top of this there will be meetings, regular paperwork( evaluations, recording), plan preparation, out of school activities, training, professional development etc  which for many full-time staff can equate to another  1-2hrs per day, on average….so ~ 43.5 hrs per week. Over 39 weeks this equals  ~1700 hrs….a standard working year.

The Council’s initial position was that these staff would only be paid for 32.5 x 39 hrs only = ~1260.

        Short by 440 hrs pa (~25%)  – effectively, currently, being unpaid.

The nub of the on-going dispute is how these additional 440 hrs would be dealt with. The Council’s position indicated by Shanker’s response is:

“Schools have been encouraged to prioritise the offer of mitigation for their support staff, including making contracted hours permanent where they have been worked on a regular and sustained basis. It is for each school to consider their position on this.”

 Where working additional hours is a regular feature we would expect it to be part of an employee’s contract, and where the additional hours are worked infrequently these would be paid as additional hours”

And fundamentally:

“TAs should be paid for all hours worked, and we have maintained this position since signing the agreement in March 2017”

When I asked how “regular” and “frequent” would be defined,  or how this would work when, currently, most staff are working strictly to contracted hours rather than additional  “goodwill” free hours – no response was given.

The Council expect staff to “prove” on some sustained basis, that their full time salary is justified, and that approved, infrequent/irregular activities are claimed as a form of overtime, albeit in the base job/salary. This is inconsistent with how other staff in the Council are treated.

I asked whether any consideration had been given to the potential divisiveness of this unusual policy between Head Teachers and staff. This issue was not addressed in the answer.

What stops the Council making the changes?

This quote from Paul Robinson summarises the Council’s position:

“The level and nature of working is to be determined by the Head Teacher/Board of Governors.

All hours paid will need to be agreed and approved by the Head Teacher/Governing body prior to being undertaken. This will be in accordance with the operational needs of the school.”

TAs and School Support staff could be in a constant state of negotiation over 25% of their base salary.

“Operational needs” should be a consideration for school headcount, not hours worked by individuals on a weekly basis; part of their contract is not a “zero hours” arrangement.

I asked the question of Cllr Shanker whether the proposal from the Council’s perspective was designed to be cost neutral, given that UNISON’s understanding would necessarily increase costs. The answer was:

“The proposal has not been designed with the intention of being cash neutral”

…and UNISON’s position?

The UNISON position is that full-time staff, on full-time contracts,  working for ~1700 hrs over a 12 month period should be paid the full annual salary. Regular supervision would crosscheck whether anything had fundamentally changed in the job needs / person’s status necessitating pay adjustments.

NB: Where staff do not work the full annual hours or equivalent for part time then they would not be paid  the annual salary ( or part time equivalent)

The Council position is potentially divisive and would most likely continue to embed reduced pay.  The converse is the case with the UNISON position and there is a risk that staff are overpaid if they are not consistently working the level of non-pupil contact time.

There must a  workable compromise?

The obligation to restructure was limited to a re-grading exercise for one job:

It was agreed in March 2017 that there were anomalies with the various jobs and grades for those TAs who have responsibilities for Special Educational Needs children and  in Enhanced Resource and Special Schools.

Cllr Shanker explained:

“The focus of the Project Review Board was to carry out the review work in relation to the roles in the Special Schools and Enhanced Resource Schools, and this was the immediate priority for the Board. A Project Review Board was established with members of UNISON, Chairs of Government, Head Teachers, and Council officers to review TA roles at two levels. Two revised Job Information Questionnaires – JIQs – were produced by the Project Review Board for evaluation. The Project Review Board had full opportunity to reflect all of the duties and responsibilities of the job in the JIQ before it was evaluated.”

 “The Project Review Board first met in late May and continued to meet until the commencement of the school summer holidays. The JIQ was submitted to Hay KornFerry Group at the end of July and the outcome was recently received and shared promptly at start of school year in September.”

The feedback from Hay in September was not as expected. The next steps from the Council is to discuss this further with Hay, however it is unlikely that they will change the conclusion; If they did this could create a dangerous precedent for the rest of the Equal Pay Review.

The Council agreed to do  a full restructure programme  in March 2017 to solve the problem; at present they have only re-considered the re-grading of one job. They have yet to propose an alternative re-structure programme as agreed.

Comment

The big mistake that both parties made was not to document the detail of the agreement in March 2017.

It would appear that relatively little of the 5 months, since then, was used for detailed constructive discussions. It was clear from the outset that the 52 week flexible contract was going to be the most time-consuming issue, and would take considerable effort to implement, yet priority was given to the re-grading exercise. The Council put “all their eggs in one basket” and did not consider other options for restructuring which would deliver the same objective without a re-grade.

70+ days of strikes came to an end because there was a belief that the Council had made substantial concessions resulting in a material recovery of lost monthly pay.  Trying to suggest, now, that the original intention of the March agreement, particularly on the “52 week contract”  was something barely noticeably different from the June 2016 position, feels disingenuous.

[Perhaps the Council should publicly explain what their interpretation was of the March 2017 agreement and how this would have improved the financial position of all staff?]

The time has now come for some straight talking between both parties that cuts through the unnecessary fog that has been generated.  The Council keeps re-iterating that they will pay for every hour that is worked.  There is an inherent ambiguity in this statement which is blocking progress which the Council seems to be playing on –  they should change the public rhetoric and restate it  with laser-sharp clarity and quantified examples to facilitate more constructive and efficient communications.

I believe that if they did “negotiate” through the use of worked examples, they might find that it brings a resolution to this dispute much quicker than they might imagine…. any takers?

Post Script

The opportunity was made available to Cllr Shanker to answer detailed questions so there was no doubt left about the Council’s efforts and current position – to bring true clarity. Why not wax lyrical about the extent of the engagement during the summer, the depth and dynamism of the discussions with UNISON, the creativity with which they tried to work to deliver the March 2017 agreement, the nature of the roadblocks which have frustrated progress, and the agreed series of “next steps” to resolve this dispute?

Why not indeed?

Because there is no evidence that  it took place…the lack of action has turned a ray of hope in March 2017 to one of deep frustration, and mistrust from UNISON and all of those low paid staff, mainly women….that continue to lose money!

 

 

 

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