Raising standards

Implementing effective performance management is a major challenge for schools. Catherine Wilson examines whether the government’s reforms will make a difference.

The government announced on 13 January 2012 that it intended to reform the system of performance management in the English Schools system – education policy within Scotland and Wales having already been regionally devolved and therefore excluded from this process.

This is not a new initiative. The previous Labour government introduced a series of reforms in an attempt to tackle perceived poor teaching performance in schools. The performance management of teachers is currently governed by the Education (School Teacher Performance Management) (England) Regulations 2006. These provide detailed mandatory guidance as to how schools are to manage poor performance. The regulations have been criticised for being over prescriptive and ineffective as demonstrated by the fact that according to the General Teaching Council only 17 employees have been “struck off” for poor performance in the past decade.

According to recent press coverage, with effect from September 2012, schools are to be given new powers to weed out incompetent teachers within a term and to enforce “rigorous” standards to ensure performance is maintained.

The intention behind the proposed changes is to make it easier for schools to manage teachers. The proposals seek to:

• introduce simpler performance management regulations, which will contain certain basic requirements but largely remove many current restrictions and thus empower schools with far greater discretion;
• introduce an optional new model policy for schools that deals with both performance and capability/disciplinary issues;
• permit a fore-shortened time scale which in extreme cases will allow poorly performing teachers to be removed in about a term, rather than the current average time scale of over a year.

It is perhaps predictable that these proposals have caused a wide variety of different reactions, ranging from the positive to the downright hostile. Described as the “bully’s charter” on the NUT website, school leaders have generally welcomed the increased flexibility.

Behind the headlines, however, these proposals may be less far reaching in practice than they at first appear as schools will still need to comply with employment laws.

Dismissal relating to performance

Dismissal for a lack of capacity or, so called, poor performance is a potentially fair reason irrespective of the business or organisation. It is however in practice one of the most difficult and time consuming processes for any employer to manage successfully. This is because – unlike a dismissal for conduct or even sickness – the management of poor performance is very much a cumulative process with the focus on rehabilitation and performance improvement.

Employers are generally free to design their own procedures and standards for performance management. Hitherto schools however have been constrained by complex procedures which include a restriction of three hours observed teaching in any one year. Viewed against this backdrop, the government proposals can be seen as no more than an attempt to place schools on an equal footing with other employers. Schools (in common with other employers) will also be required to comply with the ACAS Code introduced in 2009. This is intended to help both employers and employees deal effectively with issues of alleged misconduct or poor performance in the workplace. Breach of the code does not in itself create new legal rights. Employment Tribunals must however take account of the relevant provisions of the ACAS code in considering whether the employer has followed a fair procedure. If the employer has unreasonably failed to follow the code, then the Employment Tribunal may increase the employee’s compensation by up to 25%. Compliance with a fair process is therefore significantly incentivised. Schools will be mindful that a failure to comply with a fair procedure is almost always likely to result in a finding of unfair dismissal.

This inherent protection is unaltered by the new proposals. Teaching staff will not be left unprotected. Schools will still need to ensure the provision of appropriate training and support before any formal process is commenced.

Before embarking on any course of action, an employer should usually carry out an assessment or investigation into the employee’s capability. Such assessment or investigation must be reasonable in the circumstances and so therefore the length and depth of the investigation is likely to depend on the level or poor performance. The employer must provide the employee with the findings of that investigation and allow them the opportunity to respond. This may involve interviewing the employee and/or presenting them with collated evidence to comment on.

The investigation may reveal underlying reasons, such as failure to provide training or indications of ill health, that explain the underperformance, which the employer will need to consider before deciding on the next step.

The employer should then give the employee time to improve and regularly review progress. The length of time an employee should be given to improve is a grey area with no concrete answer. If the school has a specific capability procedure which provides for a certain timescale for improvement, this should be adhered to. However where there is no policy. Tribunals will take into account factors such as length of service and extent of underperformance. This uncertainty adds to the risk for employers in dismissing employees too soon. In common therefore with other employees, teachers will still be entitled to receive a series of warnings and given a reasonable time to improve before any dismissal takes effect.

The Government has indicated its intention to retain the requirement to have written appraisal policies and to follow an appraisal and performance procedure. The procedure of carrying out regular appraisals will, in reality, be essential to employers in this situation. Appraisal documentation may help support the employer’s decision to dismiss but clearly only in so far as the appraisal accurately reflects performance for good or ill!

The provision and communication of clear standards of performance again would be required as integral to any fair process. Employees will retain their rights of appeal and also to pursue grievances. Most importantly they will also retain their right to be accompanied by a trade union representative who can presumably be relied upon to vigorously protect their interests. Viewed in this context, cries of bullying, discrimination and victimisation seem over blown.

It will be clear from the above that the difficulties associated with effective performance management should not be underestimated. Certainly surveys in the wider HR community make the scale of the problem clear. For example in 2008 some 80% of organisations considered that they had experienced under performance issues but only 8% claimed that their policies and procedures to tackle poor performance had been successful.

These practical difficulties coupled with the costs of making a mistake, for example, a compensatory award increasing to £72,300 on 1 February 2012, must mean that schools will continue to proceed with the greatest caution in this very sensitive area.

Recycling

Finally the government has attempted to halt the practice of “pass the parcel” where by an unsatisfactory member of staff is eased out and gently moved on – so called ”recycling”. The suggestion is that schools should in future be compelled to communicate concerns regarding performance to prospective employers in so far as they do not already do this. To do this, it has been proposed that current and former employers will be required to provide copies of a teacher’s previous appraisals to a potential employer when asked to do so.

This proposal may address recent concerns raised in relation to the value given to “bland” references. In addition, not only is this in line with current general HR practice but could clearly provide significant benefits to employers and the sector generally by improving the effectiveness of the recruitment process. After all at the end of the day a failing teacher is no real use to their pupils, colleagues or even themselves.

Catherine Wilson is an Employment Partner at Thomas Eggar LLP. She can be contacted on 01293 742875 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..