Law firm on education reforms

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Head teachers will be allowed to sack the worst-performing staff in just a term – rather than a year – as part of sweeping reforms announced today. Here, Catherine Wilson Education Partner at leading law firm, Thomas Eggar, provides a legal viewpoint on the new reforms which come into place in September.

“Dismissal for lack of capacity or so called poor performance is a potentially fair reason for dismissal irrespective of the business or organisation. It is however in practice one of the most difficult processes for any employer to manage successfully. This is because unlike a dismissal for conduct or even sickness – the starting point for a performance dismissal is to rehabilitate or retrain the employee which adds to both the complexity and length of the process.

“Employers are generally free to design their own procedures and standards for performance management. In this context government proposals can be seen as no more than an attempt to place schools on an equal footing with other employers.

“Teaching staff will not be left unprotected however. The process will still require the provision of appropriate training and support before any formal process is commenced. Teachers will still be entitled to receive a series of warnings and given a reasonable time to improve before any dismissal takes effect. They, as do other employees, retain rights of appeal and also to pursue grievances which should guard against allegations of bullying, discrimination or victimisation. Finally if teachers are ultimately dismissed – it will be a dismissal on notice so they will receive notice pay – normally at least three months salary – so they will not find themselves without at least some short term financial cushion.

“The provision and communication of clear standards of performance again would be required as part of any fair process and again is to the benefit of the employee. The standards expected of a newly qualified teacher clearly being different from an experienced staff member.

“Finally the suggestion that schools should communicate concerns regarding performance as part of the recruitment process to prospective school employers has been criticised. This is in line with wider general practice and surely could provide significant benefits to employers and the sector generally by improving the effectiveness of the recruitment process.

“Whether these reforms will amount to a bully’s charter or meaningful assistance to school management teams, only time will tell. However the considerable costs associated with employment tribunals mean that irrespective of these changes schools will continue to proceed with the greatest caution in this very sensitive area.”

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