Education Act 2002 (c. 32)

(The document as of February, 2008)

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125 Reference to Review Body

(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,

(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).

126 Consultation by Secretary of State

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,

(d) bodies representing the interests of teachers.

127 Guidance

(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,

(d) bodies representing the interests of teachers.

128 Education action zone

(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.

129 Transfer of employment

(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,

(d) a community special school,

(e) a foundation special school, or

(f) a maintained nursery school.

130 Repeal of School Teachers' Pay and Conditions Act 1991

The School Teachers' Pay and Conditions Act 1991 (c. 49) shall cease to have effect.

School teachers' appraisal

131 Appraisal

(1) Regulations may require the appraisal of the performance of teachers--

(a) in a manner specified by the regulations, and

(b) at times specified by or determined in accordance with the regulations.

(2) The regulations may impose a duty on--

(a) a local education authority;

(b) the governing body of a school or institution;

(3) The regulations may--

(a) require or permit an appraisal to be carried out in a manner which confers a discretion on a person specified by or chosen or determined in accordance with the regulations;

(b) permit a person on whom a duty is imposed under subsection (2) to delegate that duty in whole or in part.

(4) The regulations may require or permit a person listed in subsection (2) to have regard to the results of an appraisal in the performance of a function specified by the regulations.

(5) The results of an appraisal may be used in determining a teacher's remuneration.

(6) Before making regulations under this section the Secretary of State shall consult such of the following as appear to him to be appropriate--

(a) associations of local education authorities in England,

(b) local education authorities in England,

(d) bodies representing the interests of teachers in England, and

(e) the Learning and Skills Council for England.

(7) Before making regulations under this section the National Assembly for Wales shall consult such of the following as appear to it to be appropriate--

(a) associations of local education authorities in Wales,

(b) local education authorities in Wales,

(d) bodies representing the interests of teachers in Wales, and

(e) the National Council for Education and Training for Wales.

(8) Section 49 of the Education (No. 2) Act 1986 (c. 61) (appraisal) shall cease to have effect.

School teachers' qualifications

132 Qualified teacher status

(1) A reference in the Education Acts to a "qualified teacher" is to a person who satisfies requirements specified in regulations.

(2) A requirement of regulations under this section may relate to--

(a) the possession of a specified qualification or experience of a specified kind;

(b) participation in or completion of a specified programme or course of training;

(d) an exercise of discretion by the Secretary of State, the National Assembly for Wales or another specified person.

(3) The Secretary of State shall consult the General Teaching Council for England before making regulations under this section which make provision by reference to--

(a) the content of a course or programme, or

(b) the standard of education or training provided through a course or programme.

(4) The National Assembly for Wales shall consult the General Teaching Council for Wales before making regulations under this section which make provision by reference to--

(a) the content of a course or programme, or

(b) the standard of education or training provided through a course or programme.

133 Requirement to be qualified

(1) Regulations may provide that specified work may not be carried out by a person in a school unless he--

(a) is a qualified teacher, or

(b) satisfies specified requirements.

(2) Regulations specifying work for the purpose of this section may make provision by reference to--

(a) one or more specified activities, or

(b) the circumstances in which activities are carried out.

(3) Provision by virtue of subsection (2) may, in particular, be made by reference to an activity specified in a document of the kind mentioned in section 124(3).

(4) A requirement of regulations under this section may, in particular, relate to--

(a) the possession of a specified qualification or experience of a specified kind;

(b) participation in or completion of a specified programme or course of training;

(d) an exercise of discretion by the Secretary of State, the National Assembly for Wales, another specified person or another person of a specified description.

(5) Regulations may limit the period of time during which work may be carried out by a person in reliance on subsection (1)(b).

(6) In this section "school" means--

(a) a school maintained by a local education authority, or

(b) a special school not so maintained.

134 Requirement to be registered

(1) Regulations may provide that specified work may be carried out in a school by a qualified teacher only if he is registered with full registration under section 3 of the Teaching and Higher Education Act 1998 (c. 30) (register maintained by General Teaching Council).

(2) Regulations may provide that work may be carried out by a person in reliance on section 133(1)(b) only if he is registered with provisional registration under section 3 of the Teaching and Higher Education Act 1998.

(3) Regulations may provide that a person may undertake a specified course of training with a view to becoming a qualified teacher only if he is registered with provisional registration under that section.

(4) Regulations specifying work for the purpose of subsection (1) or (2) may make provision by reference to--

(a) one or more specified activities, or

(b) the circumstances in which activities are carried out.

(5) In this section "school" means--

(a) a school maintained by a local education authority, or

(b) a special school not so maintained.

135 Head teachers

(1) Regulations may provide that a person may serve as the head teacher of a school only if he is a qualified teacher.

(2) Regulations may provide that a person may serve as the head teacher of a school only if he has a specified qualification (in addition to any qualification required by virtue of subsection (1)).

(3) A provision of regulations under subsection (2) shall not apply to a person who has been appointed as the head teacher of a school before the commencement of the provision.

(4) Regulations under subsection (2) shall not prevent a person from carrying out the functions of the head teacher of a school--

(a) pending the appointment of a head teacher, or

(b) in the absence of the head teacher.

(5) In this section "school" means--

(a) a school maintained by a local education authority, or

(b) a special school not so maintained.

Further education

136 Provision of education

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 institutions

(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 education

(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 education

(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: general

(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).

Health and fitness

141 Health and fitness

(1) Regulations may provide that an activity to which this section applies may be carried out only by a person who satisfies specified conditions as to health or physical capacity.

(2) This section applies to an activity of a prescribed kind performed in the course of the provision of education at--

(a) a school, or

(b) a further education institution.

(3) This section also applies to an activity of a prescribed kind performed in the course of the provision of education by a person--

(a) otherwise than in a school or a further education institution, and

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

(4) This section also applies to an activity of a prescribed kind (other than the provision of education) where--

(a) the activity is carried out by a person under a contract of employment or for services,

(b) the other party to the contract is a local education authority or the governing body of a school or a further education institution, and

(5) 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, and
"school" means--
(a)
a school maintained by a local education authority, or
(b)
a special school not so maintained.

Misconduct etc.

142 Prohibition from teaching, etc.

(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;

(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,

(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

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