EdCon2026: How schools can restructure legally and compassionately

Budget pressures and falling rolls are forcing difficult workforce decisions for schools.

In our first session of EdCon2026, Hannah Bingham, Senior HR Consultant at Browne Jacobson, and Tom Mitchell, Principal Associate in the education employment team, covered practical strategies to manage restructures fairly, handle redundancies correctly and protect your school from tribunal claims while supporting staff.

The sector context: A perfect storm

The post-pandemic birth rate decline is now hitting primary schools hard. As funding is directly linked to pupil numbers, the consequences for school leaders and trust boards are significant.

Cost pressures are simultaneously rising, driven by National Insurance increases, pay awards, and energy costs. In our summer 2025 School Leaders Survey, 85% of respondents judged the financial prospects of their organisation negatively, up from 40% in the previous autumn. 

Workforce costs typically represent 70-80% of school budgets, meaning that when savings must be found, the workforce is almost inevitably in scope.

The Employment Tribunal’s outstanding caseload rose by 22.6% in 2025, highlighting the growing pressure on the system and the importance for employers, including education providers, of getting restructures right first time. Governing bodies and trust boards have a legal duty to set a balanced budget, and inaction is not an option.

What schools should be doing ahead of time

Before a formal restructure is triggered, there is considerable groundwork that schools and trusts should be doing:

• Workforce planning: Good workforce planning includes recruitment freezes, flexibility and potential redeployment across a trust. Legacy contracts inherited under TUPE may not include mobility clauses and may need addressing. Agency spend is a significant and often overlooked cost that should be a priority to reduce.
• Curriculum delivery models: Exploring curriculum delivery models, such as teachers sharing subjects, can help manage workforce costs without reaching for redundancy.
• Financial planning: Ongoing financial planning, for example keeping close track of funding and savings, gives schools the data they need to act decisively and early.
• Alternatives to redundancy: Schools must demonstrate they have genuinely considered options such as voluntary redundancy, voluntary retirement, reduced hours, flexible working, secondments, job shares, and temporary contracts.

The business case: The foundation of everything

The business case is the foundation of the entire process and seeking legal or HR advice early is strongly recommended. It must demonstrate that a genuine redundancy situation exists and provide employees with sufficient information, including how much savings are sought, what the exercise will cost, and the impact on pensions.

Tribunals will ask whether the employer genuinely and reasonably believed redundancy was necessary. Importantly, the business case is not a fixed document – it should remain open to consultation and be updated to show the school has listened to those affected.

A well-constructed business case should include:

• The current financial position – deficit figures, reserves, and funding trajectory.
• Pupil number forecasts and their funding impact.
• Options that were considered and why alternatives to redundancy were ruled out.
• The proposed new structure and why it meets the school's or trust's needs.
• A clear, realistic timeline, working back from the intended implementation date.
• Sign-off from the governing body or trust board before the process begins.

Pooling: Getting the group right

The redundancy pool is the group of employees from which selection for redundancy is made. 

The pool must include all employees doing the same or similar work, or whose work is interchangeable. Getting the pool wrong is one of the most common causes of unfair dismissal findings:

• Too narrow a pool creates a risk of an unfair dismissal claim from the dismissed employee.
• Too broad a pool creates unnecessary complexity and places more employees at risk than is needed.

The nature of the work determines the pool, not the organisational chart.

Selection methods: Objectivity is everything

To remain as objective as possible through the selection process, the following skills matrix is recommended:

• Knowledge and qualifications: Covers relevant qualifications, knowledge of the National Curriculum, understanding of SEND and inclusion needs, and safeguarding knowledge. Criteria should be as objective and transparent as possible.
• Skills and practical competencies: Includes ability to support learning, delivery of intervention programmes, behaviour support, communication, record keeping, and use of technology. Criteria must be clearly linked to school policy, and evidence must support scores against each criterion.
• Working with others: Covers relationships with class teachers, parents and carers, external agencies, and contribution to team and school life. A sometimes-overlooked criterion that can provide important objective differentiation.
• Professional standards and conduct: Includes reliability, punctuality, adherence to school policies, professionalism, and response to feedback. Often overlooked but carries real weight.
• Flexibility and adaptability: Assesses flexibility across year groups, key stages, subject areas, and SEND needs. Care must be taken as penalising someone who has not had the opportunity to work across different areas could be open to challenge.

Discrimination risks to watch

Key discrimination risks include:

• Using part-time working as a criterion. This carries an indirect sex discrimination risk.
• Including sickness absence without adjustment. This carries an indirect disability discrimination risk.
• Using flexibility or availability criteria. This may constitute indirect sex or carer discrimination.
• Using subjective criteria such as ‘attitude’ without objective evidence. These are open to challenge.
• HR and legal advice should be taken on the matrix before it is applied.

Suitable alternatives: A genuine obligation

Finding suitable alternative employment is not a box-ticking exercise. A suitable alternative need not be identical to the at-risk role, it can involve different duties, location, or grade. Factors to consider include pay, status, hours, location, and skills required.

Key rules governing suitable alternatives:

• Employees are entitled to a four-week statutory trial period in the alternative role.
• If the role is genuinely unsuitable for the employee, they can reject it and their redundancy entitlement is preserved.
• However, an employee who unreasonably refuses a suitable alternative loses their redundancy pay.
• Employees must be given enough information to make an informed decision, including the job description, grade, and hours.

What if there is nothing suitable?

Even where no suitable alternative exists, a dismissal will still be unfair unless the employer acted reasonably in treating redundancy as sufficient to justify dismissal. A failure to make any reasonable attempt to find alternative employment can be taken into account by a tribunal.

The duty will usually require the employer to take proactive steps to assist the employee. A job list alone is not enough, evidence of other reasonable steps is required, such as speaking to employees about where their interests lie, assisting in identifying other roles, or encouraging conversations about different roles even if that means demotion.

Key takeaways: The checklist

Schools or trusts embarking on a restructure may benefit from the following checklist as a framework:

• Start early. Build in proper timelines from the outset.

• Build a robust, documented business case before anything else.

• Pool correctly. Let the nature of the work determine the pool, not the organisational chart.

• Use objective, non-discriminatory selection criteria, and moderate the scoring.

• Consult genuinely, the outcome must still be capable of being influenced.

• Search actively for suitable alternatives across the whole organisation.

• Check the collective consultation threshold before beginning individual consultations.

• Support your managers, they are the ones delivering the difficult conversations.

• Treat people with dignity throughout, it matters legally and it matters morally.

• Take HR and legal advice early, not once you are already in difficulty.

Next steps

The financial pressures facing schools are real and intensifying, and restructuring is a tool that more leaders will need to deploy in the coming years. 

Done well, with a solid business case, a carefully defined pool, objective selection criteria, and a genuine search for alternatives, restructuring can be managed lawfully and compassionately. 

Done poorly, it exposes schools and trusts to significant legal and reputational risk at precisely the moment they can least afford it. 

We’re here to help. To discuss this topic further and your specific circumstances, please get in touch.