The bottom line on handling staff issues

Whilst head teachers’ jobs demand the full range of management skills, they are expert educators first and managers only second. This means school leaders can stumble when dealing with HR issues, making expensive and often avoidable mistakes. Just one case going to an employment tribunal can run up more than £30,000 in costs before any award is taken into account. With time factored in too, it is clearly worth shutting the door before the horse bolts.
    
In over 20 years advising schools and as a former chair of governors I’ve noticed a number of easy to avoid HR mistakes that keep cropping up. Here’s the list and what steps can be taken to avoid them.
 
Email is your enemy
A switched-on employee being disciplined will always make a subject access request under the Data Protection Act to flush out embarrassing communications. In one case the request revealed that a chair of governors convening a disciplinary panel had been discussing with its members the intended dismissal before the hearing even began. The end result was that the hearing had to be scrapped and a new panel called but the school was then on the back foot and had to settle.
    
In another case the request revealed that the head teacher, who was due to chair a disciplinary hearing, had asked HR “can’t we just get rid of him”, that a manager had described the staff member as unemployable, and the deputy head teacher had discussed “the plan” to dismiss the employee. The end result was that a governor had to re-hold the disciplinary hearing in place of the head teacher.
    
These problems are easily avoided by following common sense. For example, when writing an email, even one on a home account (as that too can be disclosable in Tribunal proceedings), always imagine what it will look like to an employment judge. An opinion about a teacher’s performance or competence is personal data under the Data Protection Act and is disclosable. Always remember that emails with external HR providers are disclosable unless made in contemplation of actual litigation. Only confidential emails with a lawyer for the purposes of giving or receiving legal advice will always be protected against disclosure.
 
Deal with issues formally
A persistent problem in schools is failing to deal with low-level misconduct using the formal processes. When procedure isn’t followed from the start, it often leads to more serious misconduct and a snapping of patience when leaders want to get rid of a miscreant but haven’t got any formal warning on record.

The classic example is punctuality. If someone is late once, find out the reason and remind them of expectations; twice give them an informal warning; three times give them a formal warning. Do not, as one school did, allow 80 late appearances to pass without even a formal warning.
    
Schools often fear formal process as it can appear confrontational but they exist as a tool, firstly to improve behaviour and secondly to remove staff if there is no improvement. Staying in the informal process won’t give a sufficient prod to improve nor provide the basis to fairly remove.

This problem applies even more to dealing with poor performance under capability procedures. There is a strong resistance to moving swiftly to formal capability processes as many head teachers would prefer that a poor performer leaves after finding another job – they believe that the inclusion of a formal capability process in a reference would sink any chance of the less than competent teacher leaving quietly.
    
This has got worse since the introduction of mandatory disclosure of formal capability issues upon request since 2012. I commonly come across teachers who have been in informal processes for over a year while the head teacher tries to encourage them to leave.

But this damages everyone – an employee is much more likely to improve if they know that they are in the formal process and delaying it in cases where informal support hasn’t worked will delay any improvement and delay the chance of fairly removing the employee.

Don’t fret about labels
Having said that, there can be confusion about which process to follow. For example, sometimes schools are unsure whether behaviour should be dealt with as misconduct or as capability. Sometimes it is easy – failure to mark books is a misconduct issue; not knowing the difference between formative and summative assessment or marking too leniently or harshly is a capability issue. When it’s not so clear, it may be possible to run both processes together (if you have reviewed your HR policies effectively).
    
Appraisals and references must be honest
When asked by a school to advise on removing a persistent poor performer I always ask to look at the appraisal documents and any references sent out by the school. In over 75 per cent of cases the person described in the appraisal and references bears no resemblance to the person described by the head teacher. It is essential that honest messages are delivered in appraisals and that appraisers do not avoid difficult conversations.
    
These documents are all disclosable in a Tribunal claim and must be consistent with any capability proceedings to avoid a substantial risk of losing the claim. Schools that don’t co-ordinate their documentation can find their cases weakened.
 
The investigation report is crucial
Investigators often forget that their role is not just to look for evidence of guilt but also for evidence of innocence. In a recent case a pupil complained that a teacher had called him a dog in a lesson and initially statements from only three of the 10 pupils in class were taken. These statements appeared to support the case against the teacher. But on my advice the school interviewed the other pupils and a much more nuanced picture appeared. The pupil had referred to himself as a dog and the teacher had picked up on that wording.
    
But it’s not just the investigation that can go awry. It can sometimes be tempting for head teachers to go over the top in their language in an investigation report- saying that they have totally lost trust in the employee and can never work with them. In one case, which went to Tribunal, a head was criticised for trying to bully the governors’ panel into dismissing the subject of the report.  The case was still won as the governor who gave evidence had to say in public they often stood up to their head teacher.
 
Handle the sickness-dodge
It’s not unheard of for employees faced with formal investigations to go off sick with stress. Too many schools then delay their investigatory interviews and get caught up in a web of occupational health referrals. In one case this led to a disciplinary hearing taking place in July for an incident the previous October.
    
The firm approach is to stress that fitness to work is not the same as fitness to attend a disciplinary interview. There is useful guidance from the professional bodies for occupational health, setting out the limited circumstances that would make someone unfit to attend a disciplinary interview.
    
The interview can be held off site at a neutral venue to reduce stress and breaks are allowed. If the employee still does not attend they should be given a chance to respond to the allegations in writing and be asked any specific relevant questions. In this way the investigation can proceed promptly.
    
A similar approach can be taken if stress is being used as an excuse to avoid attending a disciplinary hearing.
    
Another possible approach for academies is to change the sick pay schemes to prohibit contractual sick pay for absence during investigations, although legal advice should be sought first by any academy considering this.
 
There are simple misconceptions or simply failures to keep policy up to date that can slow processes and even cost substantial sums.
    
A major cause for delay in school processes is the difficulty in getting a panel of three governors together especially for complex cases lasting more than a day. There is, though, no legal requirement to have a panel of three governors involved at all. It is a hangover from local authority HR practices and can be removed allowing either the head or a governor alone to conduct the hearings.
    
Likewise, schools and trusts can waste a lot of valuable management time ‘investigating’ grievances taken out ‘against’ other colleagues. A better approach is to change the language and process so the focus is in resolving grievances relating to colleagues. This approach can avoid lengthy factual investigations and focus on resolution. As an example you can use a grievance resolution form that pushes the onus onto the employee to help resolve the grievance.
    
Finally, an easy win is for schools and trusts to review their HR policies much more critically, not just implement a boilerplate template but make sure they suit the needs of the employer to ensure all lessons are at least good. Reviewed properly, these policies can be a key school improvement tool.
 
Conclusion
Schools’ budgets and heads’ time are being stretched more and more thinly. When easily avoidable errors happen, exacerbating the situation, governors and parents can rightly feel annoyed and relationships can break down, making already difficult circumstances critical. Getting it right can make the difference between an outstanding school and a good one.
 
Further information
www.wslaw.co.uk/schoolsolicitor

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