New DfE amendments to Academy Trust Handbook and College Financial Handbook

What’s changed in the Academy Trust Handbook and College Financial Handbook?

The updated provisions – set out at paragraph 5.13 of the Academy Trust Handbook (and 5.12 of the College Financial Handbook) – provide that confidentiality clauses associated with staff severance payments:

• must not prevent an individual’s right to make disclosures in the public interest (whistleblowing) under the Public Interest Disclosure Act 1998;
• are novel, contentious or repercussive, and therefore must not be used unless the trust or college has obtained prior DfE approval; and
• must not be used to prevent the DfE from obtaining sufficient information from trusts or colleges to fully assess such payments under its regulatory role.

The difficulty is a lack of clarity over what falls into the definition of “confidentiality clauses”.

Immediate effect

These amendments take immediate effect. Schools, academies, and colleges must therefore ensure that any settlement agreements (including COT3s reached through ACAS) are compliant with these new requirements.

What this means for schools, trusts and colleges

The revised provisions place a clear emphasis on transparency and oversight in the use of confidentiality clauses. In practice, this means:

• DfE approval will be required for confidentiality clauses associated with staff severance payments on the basis they are considered “novel, contentious or repercussive”.
• Any clause that might be perceived as restricting a departing employee’s ability to make protected disclosures or limiting the DfE’s access to information is likely to be considered non-compliant.
• Schools and colleges should review existing template agreements and update internal approval processes to ensure compliance with the revised Handbooks.

We recommend that schools, trusts and colleges:

1. Review their current settlement agreement templates and confidentiality provisions;
2. Ensure HR and legal teams are aware of the new approval requirements; and
3. Seek legal advice before entering into any agreement that includes confidentiality clauses related to staff severance payments.

Ward Hadaway’s Education team can provide guidance on the drafting and approval of settlement agreements and assist with any required liaison with the DfE.