The Hawthorne's Free School, which was born out of the closures by Sefton Council of St Wilfrid's Catholic High School and St George of England Specialist Engineering College, could now be the subject of a legal challenge because the employment rights of a majority of staff remain unresolved.
Legally, because the new school is effectively an amalgamation of the two former schools, and will be based on the site of the former St George of England school, it is deemed to be a direct replacement for the closing schools and so the employment of staff is subject to Transfer of Undertakings Protection of Employment Regulations (TUPE).
However, the trustees of the free school, apparently with the backing of the Department for Education (DfE), claim that these rules do not apply because the Hawthorne's is a completely new entity.
One of the teachers, a former assistant head, told SecEd this week: "We are in a state of limbo. We can't even find alternative work because by doing so we may be waiving our rights to redundancy as we will be considered to have resigned.
"A majority of us are at serious risk of losing our homes because we will have no income. We have been told that any legal challenge, or a tribunal, could take up to three months to be heard. No-one ― not Sefton Council, nor the trustees of the free school or the DfE ― are taking responsibility for our rights."
She added that some staff planned to present themselves for work this week after seeking advice from their unions. The assistant head, who asked not to be named, said most of the staff who had secured employment in the new school had been demoted and told to take a cut in pay, and some roles had been filled before jobs had even been advertised.
The National Union of Teachers (NUT) and UNISON have already joined forces to take legal action. Jon Richards, UNISON's head of education, said: "We warned Sefton Council and Hawthorne's that we would issue legal action if this situation remained unresolved, and unfortunately the future of these dedicated staff remains in limbo, so we have no choice but to make good on this warning.
"It is an outrage that Sefton Council and the governors of Hawthorne's are willing to gamble with the lives and livelihoods of their staff members, leaving them with no jobs and no redundancy pay. The botched handling of these school closures has been an utter disgrace."
Avis Gilmore, the NUT's North West regional secretary, said: "We are determined to protect their legal rights. With Hawthorn's continuing to refuse to accept these staff and slashing the salaries of the teachers they have employed, we have no option but to press legal claims."
Elsewhere, Chris Keates, general secretary of the NASUWT, added: "These are teachers who have given dedicated service to thousands of young people and they deserve better than to find themselves cast adrift."
A spokesman for Sefton Council said: "We met with staff and trade unions last week and have also been in discussions with the Hawthorne's Trust. It is fair to say that all parties are looking to resolve this situation as quickly as possible.
"However we are currently waiting on further legal advice before we are able to move forward and this is expected in the coming days."
A total of 79 free schools are now in operation after 55 more opened their doors this month. A further 114 have been approved to open from next year.