Clerks to Governors
- Provide professional advice to the governing body on governance, constitutional and procedural matters. The 2013 regulations require maintained school governing bodies to have regard to advice from the clerk in regards to exercising the governing body functions.
- Provide effective administrative support to the governing body and its committees including minute taking and convening meetings.
- Ensure the governing body is properly constituted.
- Manage all governing body information effectively in accordance with legal requirements.
- Provide support the governing body in order to meet all of its statutory duties.
A detailed job description is vital to ensure that the clerk to governors is clear in their role and so that the governing body can ensure that all their needs are met in terms of legal functions, organisation and governing body membership.
The importance of professional clerking
It is vital that governing bodies understand the reasons for employing an effective and professional clerk, and that appropriate time and remuneration is given to the post holder to allow the full role to be undertaken and performed effectively.
Clerks are non-teaching members of staff of the school, and as such, should be entitled to annual performance reviews and increments within their grade. The clerk is employed by the governing body to work for the governing body.
Extract from House of Commons Education Committee, The Role of School Governing Bodies, Second Report of Session 2013–14
A good clerk ensures that the governing body operates properly within legal frameworks, prepares and presents vital data, and provides professional support. Written evidence from NCOGS stated that a clerk “needs to be independent of the school and not a member of the school staff”.
An effective clerk is vital to the success of a governing body. The evidence clearly indicates that this should be a professional role — similar to a company secretary.
Extracts from articles written by the National Governors’ Association (NGA)
There is considerable diversity among the experience, skills and legal expertise of clerks to governors, and what people understand by and expect of clerking.
All clerks must undertake high quality and ongoing professional development so they can confidently provide accurate advice and guidance, and practical support which can transform the effectiveness of a governing body.
Guidance: Clerk to The Governing Board Employment Contracts
The government has changed the legislation on ‘Off payroll intermediaries’, more commonly known as IR35. This is an overview of the changes and the impact it will have on schools, with specific reference to the employment of a Clerk to the Governing Board.
The legislation came into force on 06 April 2017 and applies to the public sector. It will impact on schools currently hiring an interim or consultant who is ‘self-employed’ i.e. has their own personal services company (PSC) or is hired through an agency. It will also impact if a consultant is covering a specific job role on an interim basis.
The key change is that the new legislation places the liability of determining whether IR35 rules apply on the public-sector body i.e. the school, rather than the PCS. This means that schools will have to determine if an individual should be on PAYE or is genuinely self-employed. Ultimately, if there is a dispute about the basis on which tax should be paid, HMRC will issue the school with a penalty payment, which could be up to 100 per cent of the tax liable, plus payment of any shortfall in tax through not being on PAYE.
If someone is hired through an agency, the new legislation also places the onus on the school to tell the agency on which basis any agency worker should pay tax. If there is a dispute with HMRC, HMRC will contact the agency first and then the school. If the agency (third party) directly employs the individual, then the IR35 rules do not apply.
The new legislation means that schools are at far greater risk of having potential tax liabilities for its flexible work force (agency workers, interims and consultants) than previously.
How does this specifically affect clerking posts?
With many schools using self-employed individuals or consultants to carry out the clerking role, schools now need to think more widely about how these individuals (clerks) are paid and taxed, as the law places the taxation responsibility on the school, not the individual. Clerks are now also classed as ‘Office Holders’.
Clerks are ‘Office Holders’
HMRC now classes Clerks as ‘Office Holders’. Being an office holder isn’t about the physical place where the work is done, it’s about the worker’s responsibilities within the organisation. Office holders can be appointed on a permanent or temporary basis. Workers that perform office holder duties are classed as employed for tax purposes.
Office holder duties are defined on www.gov.uk as:
- The worker has a position of responsibility for the end client, including board membership or statutory board membership, or being appointed as a treasurer, trustee, company director, company secretary, or other similar statutory roles.
- The role is created by statute, articles of association, trust deed or from documents that establish an organisation (a director or company secretary, for example).
- The role exists even if someone isn’t engaged to fill it (a club treasurer, for example).
Where is the role of clerk defined in law?
For maintained schools, the statutory role of the clerk is given in The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013, Regulation 6 (part 3, referenced items 10, 11, 12, 13).
For academies, Free schools, studio schools and UTCs, the Trust Board’s Articles of Association (EFSA legal document) has a statutory paragraph covering this role. Model articles can be found here: https://www.gov.uk/government/publications/academy-model-memorandum-and-articles-of-association.
Definition of an Employee (www.gov.uk)
An employee is someone who works under an employment contract. A person may be an employee in employment law but have a different status for tax purposes. Employers (schools) must work out each worker’s status in both employment law and tax law. There is a tool by HMRC for checking employment status regarding tax, https://www.gov.uk/guidance/check-employment-status-for-tax
THE SCHOOLS’ HR CO-OPERATIVE LTD AND THE GOVERNOR SUPPORT SERVICE STRONGLY RECOMMEND ALL SCHOOLS TO ADVERTISE CLERKING POSTS AS PART-TIME, PERMANENT EMPLOYMENT CONTRACTS. THIS WILL ENSURE THAT THE SCHOOL WILL PLACE THEM ON THE PAYROLL AND TAXES ARE DEDUCTED AT SOURCE.
Part-time workers’ rights
Part-time workers are protected from being treated less favourably than equivalent full-time workers just because they’re part time. A part-time worker is someone who works fewer hours than a full-time worker. There is no specific number of hours that makes someone full or part-time, but a full-time worker will usually work 35 hours or more a week.
Benefits of clerks as employees on the payroll
The taxation changes bring about the following benefits for all parties:
- The clerk will be working to a defined job description and person specification determined by the governing board. This provides clarity and professionalism of the role and demonstrates meeting statutory duties in governance legislation.
- Capability and performance management policies will apply to the clerk as an employee. Any issues can be quickly addressed and professional HR policy advice can support these processes.
- As an employee, the clerk would have to work out a notice period as detailed in the contract of employment. This gives an opportunity to the board to arrange recruitment and a handover of duties if required.
- All parties will be better protected by the schools HR policies and practice in employment terms.
- As employees, clerks are eligible for contractual benefits, such as sick pay.
- Should the school undergo a financial audit, they can easily demonstrate that they have followed best practice, employment and taxation regulations.
- All clerks should apply through local recruitment procedures. The school can demonstrate that equal opportunities have been applied to the recruitment process.
- Those applying through the Schools’ HR recruitment website will have to apply in a set format and CV’s are not accepted. This will highlight gaps in employment and safer recruitment practices can more easily be applied.
For support and guidance on the statutory duties and process of recruiting a clerk, please contact Governor Support Service on 01895 717321, [email protected]
For advice and guidance on contracts and HR policies, please contact the Schools HR Co-operative Ltd on 01895 717499.
To place an advert for a clerk, please contact the Recruitment team on 01895 717088, [email protected]