Education Act 2002

Valid from 01/08/2003

122 Power to prescribe pay and conditionsE+W

(1)The Secretary of State may by order make provision for the determination of—

(a)the remuneration of school teachers;

(b)other conditions of employment of school teachers which relate to their professional duties or working time.

(2)Where an order under this section applies to a school teacher—

(a)his remuneration shall be determined and paid in accordance with any provision of the order which applies to him,

(b)a provision of the order which relates to a condition of employment other than remuneration and which applies to him shall have effect as a term of his contract of employment, and

(c)a term of that contract shall have no effect in so far as it makes provision which is prohibited by the order or which is otherwise inconsistent with a provision of the order.

(3)A person is a school teacher for the purposes of this section if—

(a)he is a qualified teacher,

(b)he provides primary or secondary education under a contract of employment or for services,

(c)the other party to the contract is a local education authority or the governing body of a foundation, voluntary aided or foundation special school, and

(d)the contract requires him to carry out work of a kind which is specified by regulations under section 133(1).

(4)A person is also a school teacher for the purposes of this section if he serves as the head teacher of a school maintained by a local education authority.

(5)A person is also a school teacher for the purposes of this section if his case satisfies paragraphs (b), (c) and (d) of subsection (3) and—

(a)he possesses a prescribed qualification,

(b)he provides education of a prescribed kind or in prescribed circumstances (or both),

(c)he is undertaking training of a prescribed kind, or obtaining experience of a prescribed kind, with a view to becoming a qualified teacher,

(d)he is within a prescribed class of persons awaiting assessment for the purpose of becoming a qualified teacher, or

(e)he is within a prescribed class of persons awaiting the award of a qualification.

(6)A person providing education in an establishment maintained by a local authority in the exercise of a social services function is not a school teacher for the purposes of this section.

(7)In the application of subsection (2)—

(a)it is immaterial whether someone other than the party mentioned in subsection (3)(c) provides or is responsible for providing all or part of a teacher’s remuneration,

(b)it is immaterial whether someone other than the party mentioned in subsection (3)(c) is treated wholly or partly as a teacher’s employer for some or all purposes by virtue of an enactment, and

(c)in relation to a person who provides education under a contract for services, a reference to his contract of employment is a reference to the contract for services.

(8)In this section “prescribed” means prescribed by an order under this section.

Valid from 01/08/2003

123 Order under section 122: scopeE+W

(1)An order under section 122 may, in particular—

(a)confer discretion on a local education authority or a governing body;

(b)confer a function (which may include the administration of a test or assessment, the exercise of a discretion or the exercise of a supervisory or appellate jurisdiction) on the Secretary of State or on a specified person who has agreed with the Secretary of State to perform that function;

(c)require a discretion or function conferred under paragraph (a) or (b) to be exercised having regard to guidance given by the Secretary of State or another specified person;

(d)make provision for the determination of a teacher’s remuneration by reference to any matter including, in particular, his qualifications, experience, duties, aptitude or previous salary;

(e)make provision for a right of appeal specified by or determined in accordance with the order;

(f)limit the aggregate amount of an allowance, or of a number of allowances, payable to teachers in a school;

(g)set a lower or upper limit on the number or proportion of teachers in a school who are paid on a specified scale;

(h)set a lower or upper limit on the number or proportion of teachers in a school who are paid a specified allowance;

(i)provide for special provisions to apply in relation to a description of school specified by or determined in accordance with the order;

(j)provide for the determination of a question of the interpretation or application of a provision of the order.

(2)Provision under subsection (1)(e) or (j) may—

(a)confer jurisdiction on a court, tribunal, person or body;

(b)provide for a matter to be settled by agreement between, or in a manner agreed between, teachers and local education authorities or teachers and governing bodies.

(3)An order under section 122 may make retrospective provision, but not so as to—

(a)reduce remuneration in respect of a period wholly or partly before the making of the order, or

(b)alter a condition of employment to the detriment of a teacher in respect of a period wholly or partly before the making of the order.

(4)The Secretary of State may by order provide—

(a)that a payment or entitlement of a specified kind is or is not to be treated as remuneration for the purpose of section 122(1);

(b)that a specified matter is or is not to be treated for that purpose as relating to the professional duties of school teachers;

(c)that a specified matter is or is not to be treated for that purpose as relating to the working time of school teachers.

Valid from 01/08/2003

124 Order under section 122: supplementalE+W

(1)An order under section 122 may—

(a)make provision which applies generally or only in a specified case or in specified circumstances;

(b)make different provision for different cases or circumstances;

(c)make transitional provision.

(2)An order under section 122 may make provision by reference to the exercise of another power under this Act.

(3)An order under section 122 may make provision by reference to a document; and—

(a)an order which makes provision by reference to a document must include provision about publication of the document, and

(b)a reference in this section to an order includes a reference to a document referred to by an order.

Valid from 01/08/2003

125 Reference to Review BodyE+W

(1)An order under section 122 may make provision about a matter only if the Secretary of State has—

(a)referred the matter to the School Teachers’ Review Body under section 120, and

(b)considered their report.

(2)But subsection (1) shall not apply—

(a)to subsidiary provision, or

(b)in a case where the Secretary of State has consulted the chairman of the Review Body about disapplying that subsection.

(3)Provision is subsidiary for the purpose of subsection (2)(a) if the Secretary of State thinks that it—

(a)concerns only the criteria for entry into or exit from a particular class of teachers for purposes of remuneration,

(b)concerns only the criteria for moving from one scale of remuneration to another,

(c)concerns only the implementation or application of a system or principle on which the Review Body has reported,

(d)prescribes a matter for the purpose of section 122(5),

(e)is made under section 123(4), or

(f)is minor, consequential, temporary, transitional or designed to resolve an anomaly.

(4)The Secretary of State may by order provide that provision of a specified kind (which may be described wholly or partly by reference to an opinion of the Secretary of State or another person)—

(a)shall be subsidiary for the purpose of subsection (2)(a), or

(b)shall cease to be subsidiary for that purpose.

(5)An order under subsection (4) may amend subsection (3).

Valid from 01/08/2003

126 Consultation by Secretary of StateE+W

The Secretary of State may not make an order under section 122 or 125(4)(a) unless he has consulted such of the following as appear to him to be appropriate to consult having regard to the content of the order—

(a)associations of local education authorities,

(b)local education authorities,

(c)bodies representing the interests of governing bodies of schools, and

(d)bodies representing the interests of teachers.

Valid from 01/08/2003

127 GuidanceE+W

(1)The Secretary of State may issue guidance about the procedure to be followed in applying provision of an order under section 122.

(2)The following shall have regard to guidance under subsection (1)—

(a)a local education authority, and

(b)the governing body of a school.

(3)Where an employer fails to follow guidance under subsection (1)—

(a)the failure shall not give rise to civil liability, but

(b)a court or tribunal may take the failure into account in any proceedings.

(4)The Secretary of State may not issue guidance under subsection (1) unless he has consulted such of the following as appear to him to be appropriate to consult having regard to the nature of the guidance—

(a)associations of local education authorities,

(b)local education authorities,

(c)bodies representing the interests of governing bodies of schools, and

(d)bodies representing the interests of teachers.

Valid from 01/08/2003

128 Education action zoneE+W

(1)This section applies to a school which forms part of an education action zone for the purposes of Chapter 3 of Part 1 of the School Standards and Framework Act 1998 (c. 31).

(2)On the application of the governing body of a school, the Secretary of State may by order provide that section 122(2) shall not apply to any school teacher at the school.

(3)Where an order under subsection (2) is in force in respect of a school—

(a)the governing body shall determine the remuneration and other conditions of employment of each school teacher at the school,

(b)the local education authority shall do anything necessary to give effect to the governing body’s determination, and

(c)pending a determination under paragraph (a), the terms on which a school teacher works at the school shall remain unchanged (irrespective of any new order under section 122).

(4)A governing body may not make an application under subsection (2) unless they have consulted each school teacher at the school.

(5)An application under subsection (2) must specify a date for commencement of the order sought; and—

(a)the date specified must not precede the expiry of the period of three months beginning with the date on which the application is made, and

(b)an order made on the application must provide that it comes into force on the date specified in the application or on a later date which is agreed between the Secretary of State and the governing body and which is specified in the order.

(6)The Secretary of State may make regulations about the application of section 122(2) where an order under subsection (2) above—

(a)is revoked, or

(b)lapses (in whole or in part) because one or more schools to which the order relates cease to form part of an education action zone.

(7)In this section “school teacher” has the same meaning as in section 122.

Valid from 01/08/2003

129 Transfer of employmentE+W

(1)Section 122(2) shall not apply to a person if—

(a)a maintained school is established in place of an independent school in pursuance of proposals published under section 28 or 31 of the School Standards and Framework Act 1998, and

(b)the person becomes a school teacher in the maintained school in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794).

(2)But if the school teacher gives a notice in writing under this subsection to his new employer, section 122(2) shall apply to him in respect of the period beginning with—

(a)a date specified in the notice,

(b)if no date is specified under paragraph (a), a date agreed between the teacher and the new employer, or

(c)if no date is specified under paragraph (a) or agreed under paragraph (b), the date on which the employer receives the notice.

(3)Where the governing body of a foundation, voluntary aided or foundation special school receive a notice under subsection (2), they shall inform the local education authority.

(4)In this section “school teacher” has the same meaning as in section 122.

(5)In subsection (1) “maintained school” means—

(a)a community school,

(b)a foundation school,

(c)a voluntary school,

(d)a community special school,

(e)a foundation special school, or

(f)a maintained nursery school.

Valid from 01/09/2003

Further educationE+W

136 Provision of educationE+W

Regulations may—

(a)prohibit the provision of education at a further education institution by a person who does not have a specified qualification;

(b)prohibit the provision of education at a further education institution by a person unless he is serving or has served a probationary period;

(c)specify conditions to be complied with by or in respect of persons providing education at a further education institution.

137 Principals of further education institutionsE+W

(1)Regulations may provide that a person may serve as the principal of a further education institution only if he has a specified qualification.

(2)Regulations under subsection (1) shall not prevent a person from serving as the principal of an institution while he is following a course or programme which—

(a)is of a kind specified in the regulations, and

(b)is designed to lead to the award of a qualification specified under subsection (1).

(3)A provision of regulations under subsection (1) shall not apply to a person who has been appointed as the principal of an institution before the commencement of the provision.

(4)Regulations under subsection (1) shall not prevent a person from carrying out the functions of the principal of an institution—

(a)pending the appointment of a principal, or

(b)in the absence of the principal.

138 Training in provision of further educationE+W

(1)This section applies to a course which is designed to lead to the award of a qualification specified under section 136 or 137(1).

(2)The Secretary of State may by regulations—

(a)prohibit the provision by a further or higher education institution in England of a course to which this section applies without the approval of the Secretary of State;

(b)enable the Secretary of State to determine the number of persons who may undertake a specified course to which this section applies at a further or higher education institution in England;

(c)enable the Secretary of State to determine the number of persons in different categories who may undertake a specified course to which this section applies at a further or higher education institution in England.

(3)The National Assembly for Wales may by regulations—

(a)prohibit the provision by a further or higher education institution in Wales of a course to which this section applies without the approval of the National Assembly;

(b)enable the National Assembly to determine the number of persons who may undertake a specified course to which this section applies at a further or higher education institution in Wales;

(c)enable the National Assembly to determine the number of persons in different categories who may undertake a specified course to which this section applies at a further or higher education institution in Wales.

139 Wales: provision of higher educationE+W

(1)The National Assembly for Wales may by regulations—

(a)prohibit the provision by an institution to which this section applies of a course of higher education without the approval of the National Assembly;

(b)enable the National Assembly to determine the number of persons who may undertake a course of higher education at an institution to which this section applies;

(c)enable the National Assembly to determine the number of persons in different categories who may undertake a course of higher education at an institution to which this section applies.

(2)This section applies to an institution in Wales which provides further or higher education and is within the further education sector.

140 Further education: generalE+W

(1)Regulations under any of sections 136 to 139 may provide that a specified provision of the regulations shall not apply where a specified condition (which may refer to the opinion of a specified person) is satisfied.

(2)Regulations under any of sections 136 to 139 may impose a function on—

(a)a local education authority, or

(b)the governing body of a further or higher education institution.

(3)In sections 136 to 139—

• “education” includes vocational, social, physical and recreational training,

• “further education institution” means an institution which—

  (a)

  provides further education and is maintained by a local education authority, or

  (b)

  is within the further education sector, and

• “higher education institution” means an institution which—

  (a)

  is within the higher education sector, and

  (b)

  receives financial support under section 65 of the Further and Higher Education Act 1992 (c. 13) (administration of funds by higher education funding councils).

Valid from 31/03/2003

Misconduct etc.E+W

142 Prohibition from teaching, etc.E+W

(1)The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may direct that a person—

(a)may not carry out work to which this section applies;

(b)may carry out work to which this section applies only in circumstances specified in the direction;

(c)may carry out work to which this section applies only if conditions specified in the direction are satisfied.

(2)This section applies to—

(a)providing education at a school,

(b)providing education at a further education institution,

(c)providing education under a contract of employment or for services where the other party to the contract is a local education authority or a person exercising a function relating to the provision of education on behalf of a local education authority, and

(d)taking part in the management of an independent school.

(3)This section also applies to work of a kind which—

(a)brings a person regularly into contact with children, and

(b)is carried out at the request of or with the consent of a relevant employer (whether or not under a contract).

(4)A direction under this section may be given in respect of a person only—

(a)on the grounds that the person is included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children Act 1999 (c. 14) (list of individuals considered unsuitable to work with children),

(b)on the grounds that the person is unsuitable to work with children,

(c)on grounds relating to the person’s misconduct,

(d)on grounds relating to the person’s health, or

(e)in the case of a direction given by virtue of subsection (2)(d), on grounds relating to the person’s professional incompetence (or on a ground mentioned in any of paragraphs (a) to (d)).

(5)The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may by regulations prescribe the procedure for giving a direction under this section (including provision about notification of persons who are subject to directions).

(6)The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may vary or revoke a direction under this section except in a case where—

(a)the direction was given on the grounds that a person is unsuitable to work with children, and

(b)the person claims that he is no longer unsuitable to work with children.

(7)The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may by regulations prescribe the grounds on which a person subject to a direction under this section may seek to have it varied or revoked under subsection (6).

(8)Where a person is subject to a direction under this section, a relevant employer shall not use the person to carry out work in contravention of the direction.

(9)In this section—

• “child” means a person who has not attained the age of 18 years,

• “education” includes vocational, social, physical and recreational training,

• “further education institution” has the meaning given by section 140,

• “relevant employer” means—

  (a)

  local education authority,

  (b)

  a person exercising a function relating to the provision of education on behalf of a local education authority,

  (c)

  the proprietor of a school, or

  (d)

  the governing body of a further education institution, and

• “school” includes an independent school.

143 Directions under section 142: contractor, agency, etc.E+W

(1)A person shall not arrange for an individual who is subject to a direction under section 142 to carry out work in contravention of the direction.

(2)If the Secretary of State thinks that a person is likely to fail to comply with the duty under this section in relation to work in England, the Secretary of State may direct the person to take or refrain from taking specified steps with a view to securing compliance with that duty.

(3)If the National Assembly for Wales thinks that a person is likely to fail to comply with the duty under this section in relation to work in Wales, the National Assembly may direct the person to take or refrain from taking specified steps with a view to securing compliance with that duty.

(4)A direction under subsection (2) shall be enforceable, on the application of the Secretary of State, by a mandatory order.

(5)A direction under subsection (3) shall be enforceable, on the application of the National Assembly, by a mandatory order.

144 Directions under section 142: appealE+W

(1)A person in respect of whom a direction has been given under section 142 may appeal to the Tribunal established under section 9 of the Protection of Children Act 1999 (c. 14)—

(a)against the decision to give the direction;

(b)against a decision not to vary or revoke the direction.

(2)In a case to which subsection (3) applies, the Tribunal may, on an application for a review of a direction under section 142, revoke the direction.

(3)This subsection applies to a case where—

(a)the direction was given on the grounds that the applicant is unsuitable to work with children,

(b)the applicant has obtained the leave of the Tribunal to apply for a review of the direction, and

(c)the Tribunal is satisfied that the applicant is no longer unsuitable to work with children.

(4)The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may by regulations—

(a)provide that the Tribunal may not entertain an appeal under this section in so far as the appellant’s case is inconsistent with his having been convicted of an offence;

(b)prescribe circumstances in which the Tribunal shall allow an appeal under this section;

(c)prescribe the powers available to the Tribunal on allowing an appeal under this section;

(d)prescribe circumstances in which the Tribunal shall grant an application for leave under this section;

(e)prescribe circumstances in which the Tribunal shall grant an application for a review under this section;

(f)prescribe the powers available to the Tribunal on revoking a direction.

Valid from 31/03/2003

146 Repeal of sections 218 and 218A of Education Reform Act 1988E+W

Sections 218 and 218A of the Education Reform Act 1988 (c. 40) (school and further and higher education regulations) shall cease to have effect.