Teachers’ performance has been a hot topic in the media lately with many people calling for schools to dismiss teachers who are not hitting the mark. Perhaps because of this, more and more schools are operating like other regulated professions, such as the legal and medical professions, where performance is closely monitored and claims of behavioural misconduct taken seriously – with the most serious cases being referred to a regulatory body.
An issue that has resulted in numerous claims of misconduct in the last few years is the improper use of social media. More than one in 10 of the school teachers accused of misconduct last year were guilty of using social media sites and emails to communicate with students, with a few cases resulting in the teacher being dismissed. Establishing and communicating policies on problem areas can help prevent claims from arising.
However when claims do arise, schools need to be comfortable with the guidelines to ensure they protect themselves from unfair dismissal claims, but to also feel confident while handling disciplinary issues. New regulations on misconduct came into effect in April 2012 and deal with referrals to the Teaching Agency, a regulatory body that handles codes of conduct and protects the reputation of the profession.
That body has delegated powers from the secretary of state to make certain prohibition orders via its professional conduct panel, in extreme cases preventing a teacher from working as a teacher in the UK.
A brief review of the steps will follow but I highly recommend headteachers seek advice from HR or legal professionals when handling any such cases.
As an employer you must follow either a disciplinary procedure when dealing with issues relating to staff conduct, or a capability procedure when dealing with issues relating to a teacher’s performance.
Disciplinary procedures should only be used where the conduct of the member of staff is in question, for example where harassment, bullying or fraud is alleged. Capability procedures should only be used where the capability competence or performance of the member of staff is in issue.
Although I advise headteachers to take all claims seriously, some of them can be handled informally. These cases involve a behaviour that needs improvement and this can be discussed in an unrecorded first meeting with a senior member of staff, which counts as the teacher’s first warning.
The aim here is to find a solution that works for both parties, and this may require further training, coaching or counselling. If it becomes obvious that the matter may be more serious, the meeting should be adjourned. The employee should be told that the matter will be continued under the formal disciplinary procedure.
Formal stages, which are for more serious cases, should be conducted by your governing body or the headteacher. First, the claim needs to be investigated to fully gather the facts. In some cases it may be best to use an external body to ensure results are unbiased and thorough.
At this stage you should write to the teacher setting out the alleged conduct or capability issue, invite the teacher to a meeting, remembering to inform the teacher of the right to be accompanied by a trade union representative.
The employer should then hold the meeting to discuss the matter followed by informing the teacher, in writing, of the decision made in the meeting. You are required to offer the right to appeal and, again, you should inform the teacher of the right to be accompanied by a trade union representative at the appeal.
If the teacher does not agree with the decision, he or she can submit a written notice of appeal. The employer should invite the teacher to an appeal meeting and again the employer should inform the teacher of the decision in writing.
If the employer does not set out the dismissal or disciplinary rules and procedures in writing then they can be ordered to pay the employee compensation.
Teachers must take all reasonable steps to attend meetings. If they do not comply with a workplace procedure and they subsequently wish to claim unfair dismissal any compensation may be reduced.
It is vital to treat all claims fairly and seriously and it may be best to seek legal or HR advice from the outset because if a teacher believes that he or she has been treated unfairly or has been discriminated against during the disciplinary or capability process, he or she is entitled to take out a formal grievance.
Disciplinary procedure checklist
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Must be in writing
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Must be non-discriminatory
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Provide for matters to be dealt with promptly
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Allow for information to be kept confidential
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Tell employees what disciplinary action might be taken
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Say what levels of management have the authority to take the various forms of disciplinary action
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Require employees to be informed of the complaints against them and supporting evidence, before a disciplinary meeting
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Give employees a chance to have their say before management reaches a decision
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Provide employees with the right to be accompanied
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Provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct
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Ashley Norman is an employment partner at Cobbetts. Visit www.cobbetts.com