An academy trust broke rules after using a confidentiality clause while cutting ties with an employee.
This is the first known case of a trust falling foul of the new rules surrounding settlement agreements with outgoing employees since they were quietly changed last year.
And legal expert Jean Boyle, of Stone King, urged the government to give “greater clarity” over the use of the clauses as leaders remain confused over when they can be used.
“Trusts remain unclear as to whether consent is required when an employee requests confidentiality provisions,” she said.
“In addition, it is unclear as to whether confidentiality provisions which are already in the contracts of employment of departing employees will be allowed to be reasserted.”
The academy trust handbook states that all settlements of £50,000 or more must get approval.
Changes ‘took many trusts by surprise’
Latest accounts for BMAT Education – a 12-school chain in Essex – show that it signed off on a settlement over the threshold without the Department for Education’s go-ahead.
It also contained a confidentiality clause, contravening newly updated Treasury guidance. It subsequently was not given retrospective approval by the DfE.
But the trust stressed that the guidance was “updated only shortly before the settlement agreement was finalised”. BMAT has been approached for comment.
The academy trust handbook was updated in October following the Treasury changes.
It now describes the clauses as “novel, contentious or repercussive” and says they “must not be used unless the trust has received prior DfE approval”.
Boyle noted the change introduced “immediately prior to October half-term last year was unexpected and took many trusts by surprise”. This was made worse by the timing as it was “just prior to the notice deadline for teachers”.
At the time, Polly O’Malley, of law firm Browne Jacobson, warned that leaders must be “aware” of the changes, or risk inadvertently breaching academy rules when signing off on severance payments.
