NATIONAL UNION OF TEACHERS 2001

GUIDANCE FORDIVISION SECRETARIES

AND CASEWORKERS

CAPABILITY PROCEDURES FOR TEACHERS:

JOINT NEOST TEACHER UNION ADVICE ON DFEE GUIDANCE

The DfEE issued statutory guidance on 'Capability Procedures for Teachers' in July 2001.This document contains joint guidance from NEOST and teacher organisations on the DfEE guidance. The DfEE advised governing bodies that they 'must have regard' to the DfEE's procedure and they were recommended to adopt it. The joint advice sets out the background to the discussions and the key points on the implementation of capability procedures at school level.

INTRODUCTION

1. The Employers' and Union representatives who took part in the ACAS chaired working group in 1997, have been considering the model procedure and guidance issued to schools by the DfEE in July 2000. This advice will assist in any subsequent local discussions to review procedures in schools.

BACKGROUND TO NATIONAL DISCUSSIONS

2. All participants continue to recognise the need for schools to have procedures which implement the shared commitment for effective procedures which reflect the rights and responsibilities of teachers and governing bodies in schools. The report from the group agreed in 1997, which accompanied the model outline procedure, reflected on a number of Government proposals on teacher performance in general which had not, at that stage, been implemented.

3. In addition to taking stock of the changes which have occurred since 1997, the Employers and Union representatives have also been given some background on the monitoring arrangements which NEOST shared with DfEE officials. It is understood that that exercise revealed some disappointments. However, our experience of the implementation process which followed the agreement in 1997, was that in the majority of cases the principles of the national outline procedure were built into procedures recommended for adoption by schools, following consultation at local level.

4. Ministerial letters in 1997 confirmed that the outline procedure was acceptable to government and demonstrated an understanding that implementation was most effectively carried out at local level. We continue to believe that the best route to local implementation is advice from LEAs to schools on procedures to be adopted and that such advice should reflect consultations with local unions. That process is bound to start from existing local procedures. Such procedures are designed to be implemented by schools and teachers who would have little or no experience of their operation. It follows that local procedures have to cover points of detail with the aim of smooth operation in schools.

5. At this stage, Union and Employer representatives are keen to ensure that further local discussions on any changes to recommended procedures for schools to consider deal with key concerns. The following advice should be taken into account in any local reviews.

REVIEWS OF PERFORMANCE

6. The 1997 report for the ACAS Group emphasised that dealing with unsatisfactory teachers should be seen as only a part of the overall proposals then being designed to improve the morale and status for teachers. The development of performance management, the introduction of induction and developments in in-service training have all been aimed to improve the performance of teachers. Any further guidance to schools should be developed to emphasise this point further. At the same time, it has to be acknowledged that the approach to individual cases will have to reflect the seriousness of the capability problems.

TIMING OF REVIEWS

7. The timetables outlined in the DfEE's model procedure to schools are based on those agreed in the ACAS working group. In terms of the circumstances where the procedure for a four week maximum would be appropriate, the latest guidance reinforces the agreement in the ACAS group for the need for prompt action where pupils' education is jeopardised. The clearest case will be where there are problems over control in the classroom. A further example could be where the pupils are failing to progress in a teacher's lesson.

  1. Where there is a clear lack of progress by all the children under the teachers' care, it will be imperative for steps to be taken to address any shortcomings in the teachers performance. Before deciding whether such problems would justify the use of the fast track procedure there would need to be an investigation and a formal interview. That will allow for a clear understanding of the reasons for such a weakness. Local procedures must not rule out the fast track option for such an exceptional case but will need to emphasise that the four weeks is the maximum to provide for an opportunity for improvements to be achieved.

EVALUATION MEETINGS

9. The DfEE's advice to schools emphasises the need to assess a range of factors with a view to giving clear indications of problems and strategies and targets for improvements. When stressing the role and importance of evaluation meetings, one of the possible outcomes was a lack of confidence that improvements in performance could be sustained. Whilst recognising this could be a conclusion, the wording of the DfEE's model procedure could leave it open for the head teacher to reach such a conclusion without explanation or discussion with the teacher concerned. It should be clear that the explanation and discussion must occur in all circumstances.

  1. Other parts of the DfEE's model reinforce a clear and structured approach to feedback with the teachers. The value of structured assessments with clear outcomes need to be clearly established at every stage. Local procedures will need to reinforce the need for structured feedback from any conclusion from an evaluation meeting.

ADVICE ON APPLYING THE PROCEDURES

General Background

11. In addition to the report that accompanied the outline procedure agreed in 1997, subsequent advice was issued by NEOST (see EEB 367) which had been discussed with all the teacher unions. This covered some of the obstacles to speedier use of procedures. We believe this approach should be developed further in local discussions.

12. The 1997 discussions in the ACAS group had to be based on the range of different procedures which had been adopted by schools. Such local procedures would, therefore, have taken account of a range of factors, not least being the approach of the school to the allocation of responsibilities between governors, heads and other managers.

13. So that, for example, representatives from the voluntary aided sector were clear that lines of responsibility needed to be set nationally between the head teacher and the governing body at every stage. Model procedures for such schools have, therefore, emphasised that non-executive decisions have to be the responsibility of the governing body rather than the head teacher or other managers in the school on issues such as hearing appeals.

14. It is also difficult to make national assessments on roles within schools without taking into account the resources available to the school. The head teacher must assume responsibility to manage a capability procedure and may want to involve other senior colleagues for advice, assessment and monitoring. Such issues need to be clear in local discussions for any review of procedures.

15. Whilst noting the general nature of much of this part of the DfEE guidance, we remain concerned that there are a number of specific procedural points which could easily be misunderstood unless there is further development at local level.

  1. A particular concern is the reference to the role of governors and others in hearing appeals. The need for distinctive membership at the various stages is clearly understood but we believe it would be more helpful for practical guidance to avoid potential procedural disputes. The key points for those hearing cases will include:
  • no view can be reached until the representations from all parties have been taken into account;
  • this can only take place properly as part of the procedures for hearing cases and appeals;
  • any information received outside this process prior to these hearings must be discounted;
  • individuals involved in hearing cases or appeals should report any attempts to influence them and declare as early as possible any issues which could be perceived as undermining their impartiality;
  • all proceedings should be regarded as confidential and only the final decision should be reported to third parties.
  1. Such practical points will form part of advice at local level.

Timing

18. Whilst understanding that unnecessary delay is not in the interest of any party, all procedures need to ensure that proper arrangements are made to allow effective representation and consideration of issues as well as taking account of the balance between teacher's working life and other factors. The grounds for holding any meetings into the summer holiday period need to be established and outlined in local procedures.

19. On a detailed point, it will be helpful for local discussions to emphasise that problems over arranging meetings can be avoided by early establishment of the timetable.

  1. The points made in paragraph 5 in support of the DfEE guidance for teachers need to be emphasised in local discussions. The need for feedback to be structured and provided to the teacher should also be clear in local procedures. Whilst understanding the need to avoid further delay, the timing of the procedures need to take into account that out of school support, such as training courses and other assistance, will reduce the opportunity for assessments of achievement of objectives and improvement in performance.

Written Records

  1. We would expect that local procedures would make it clear that all relevant documentation would be made available to the teachers. It is not clear in paragraph 7 in the DfEE guidance whether the time limits for expiry of warning are maximums or ideal periods. The ACAS code does give some guidance on this issue, but allows scope for different arrangements. Local procedures will deal with the expiry and role of warnings.

Staff Absences and Grievances

22. Delay in implementing capability procedures because of short-term illnesses and use of grievance procedures was an issue that the group had dealt with in earlier discussions. A copy of the advice issued by NEOST, and agreed by the unions, is attached. (This advice pre dates the Schools Standards & Framework Act 1998) The emphasis there that no procedures should be given precedence is still valid. The emphasis in the latest DfEE guidance, that use of a grievance may halt disciplinary proceedings, seems to be at odds with the opportunity to raise issues concerning the use and operation of a procedure at a formal hearing or appeal.

23. Since the 1997 advice was issued, the government has legislated to introduce protection for individuals operating 'whistle-blower' procedures. Authorities should have encouraged schools to have in place procedures for cases of harassment. These procedures should provide sufficient safeguard to teachers with serious concerns about their treatment, particularly in any procedures before a formal review has started, so that separate grievances are not necessary.

24. In terms of absences due to sickness, a case by case basis still seems to be the acceptable starting point. An absence designed to delay proceedings would not be encouraged as it would constitute an abuse of the procedures. However, on a practical basis, a medical prognosis by an occupational health adviser may be required to determine whether the absence is short-term or long term. This is what led the Employers and unions to conclude in 1997 that a case by case approach would be more appropriate. It should be emphasised that that approach would not rule out proceeding in a teacher's absence, but was designed rather, to ensure that the full range of factors were assessed before such a step was taken.

25. Paragraph 12 of DfEE guidance outlines arrangements for appeals from formal warnings issued as part of a capability procedure.

26. Different practices have developed on the role of any appeal. A more structured approach on procedural issues will be needed for schools. In addition to outlining the timetable and rights to representations, effective arrangements will deal with the grounds for any appeal and the factors to be taken into account. These should be set out in local procedures.

27. Whilst experienced colleagues will understand the explanation of reasonableness set out in paragraph 12 of the DfEE guidance, we are not entirely clear of its value at school level. In most cases, those hearing the appeal are unlikely to have experienced an assessment of the reasonableness of a head teachers' action in more than one case. Local procedures must set out the process for an appeal, time allowed for representation, the need to take advice from CEOs for formal hearings and issues such as who should be present. Such points need to be set out in local procedures to avoid misunderstanding and delay.

Monitoring

28. The Secretary of State has asked for a further survey to assess the adoption of the DfEE's model procedure and the incidence of terminations.

29. To allow time for local discussions and decisions at school level, LEAs will be asked to reply to a survey from NEOST by July 2001 on any revisions to local procedures to reflect the DfEE's model procedure.

30. The DfEE has commissioned UMIST to survey LEAs on the incidence of terminations under capability procedures. This is part of wider research on effectiveness of capability procedures at school and LEA level.

31. LEAs will want to take account of this monitoring in any local discussions.

GUIDANCE FOR DIVISION SECRETARIES AND CASEWORKERS 1