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Posted 17 January 2012
by Martin Laver

Teachers are employees too

It was interesting to hear earlier on in the week about the Government’s plans to change the way performance issues with teachers will be dealt with.

The proposal is that guidelines will be changed allowing head teachers to dismiss teaching staff on the grounds of capability after a review period of only one term rather than an entire academic year.  This raises an interesting employment law issue.Most teachers are, of course, employees.  Accordingly, the general principles  of employment law apply equally to them.  An underperforming employee is usually dealt with by way of a capability process.  Whilst, there are similarities between a capability process and a disciplinary process the two are different.  Importantly, a capability process is used to deal with an employee who, for whatever reason cannotperform the responsibilities of the role rather than refusing to do so or failing to do which would usually be misconduct and dealt with by the disciplinary process.  Deciding which process to follow can be tricky.

Having decided the capability process is the one to follow, an employer must set out the problem fully to the employee, ensure that appropriate training is given and identify key performance indicators which the employee will be expected to meet or exceed.  Failure to do so moves the employee on to the next stage in the process.  Significantly, an employer must allow an employee a reasonable opportunity to meet those targets.  It is this requirement which the Government’s proposals will put under the spotlight.

For years, it has been accepted that a teacher performing poorly can have up to 12 months in which to turn their performance around.  The new plan is to allow perhaps only 9 weeks in some cases.  Whilst the theory behind the proposal is laudable, there are surely likely to be a number of Employment Tribunal claims brought against schools for enforcing a time frame that was unfairly short.  Employee’s will surely argue that 12 months was considered reasonable for years, what has changed?  Such claims could be particularly expensive if, as the Government seem to keen to ensure, the employee will find it very hard to find another job in teaching.

Only time will tell. But not much time, it seems.


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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills