Legal opinion: Underperforming employees in schools and the private sector

Employment lawyer Justin Govier considers the Government’s proposals to greatly reduce the capability review period for underperforming schoolteachers.

As I was stuck in traffic on my way to work last week, I overheard a piece on the radio that caught my ear. The Government was to announce measures that would mean “bad” teachers could be sacked within a term. Let the battle commence. In the blue corner, we had education secretary Michael Gove telling us how it was not right that bad teachers are tolerated for so long. In the red corner, we had Christine Blower, general secretary of the National Union of Teachers, telling us how this was potentially a “bully’s charter”.

The formal announcement of the new arrangements for teacher appraisal and capability (to be introduced from 1 September 2012) comes following a public consultation. The part dealing with teacher capability does make interesting reading. In particular, the suggested length of the monitoring and review period of a teacher following a first warning has been reduced from 20 weeks to between four and 10 weeks. However, the guidance makes it clear that the length of the review period must be reasonable in the circumstances of each case and must provide sufficient time for improvements to take place. Nonetheless, this is likely to lead to a speeding up of the process in which schools can, and probably will, deal with underperforming teachers. Previously, a school would have had its work cut out persuading an employment tribunal that a period of review of less than 20 weeks was reasonable, whereas now it seems that would become a much easier task.

Private sector employers do not commonly have explicit written prescribed periods, but if they did it is unlikely that they would be as long as 20 weeks. The range of four to 10 weeks (although in fairness probably the upper end of that) is far more probable.

In any event, the law on unfair dismissal provides all employees with protection against being dismissed, as the name suggests, either for an unfair reason or in an unfair manner. Capability is potentially a fair reason to dismiss an employee, but a fair procedure needs to be followed in order for the employer to escape a finding of unfair dismissal. The length of time that an employer gives the employee to improve performance before dismissing will often be critical in determining whether or not the dismissal was fair. The existing suggested period for teachers of 20 weeks would, in many cases, be longer than an employment tribunal would find to be reasonably necessary. However, as the less headline-grabbing caveat in the guidance suggests, the period of time for review is entirely dependent on the circumstances of the case and the speed in which the teacher is able to show an improved performance.

One must not forget that the primary purpose of the capability procedure is not, in theory at least, to lead to a dismissal but rather to help an employee to improve performance. In reality, of course, most employees greet the commencement of capability procedures as the beginning of the inevitable slow march to dismissal, which is why any speeding up of that march is not welcomed by the teaching profession (with the notable exception of some headteachers).

So, how long does a school need to assess whether or not a teacher is capable of improved performance? Is it four weeks or 20 weeks? That might depend on the time of year or the subject taught. The school should, regardless of the guidance, consider all relevant factors, just as private sector employers do. The employment tribunal will be the ultimate arbitrator if need be. Nonetheless, the new guidance will make it far more likely that shorter periods will be held reasonable.

Given that 20 weeks is above the norm, is it right that the teaching profession has been brought in line with private sector practice? You must reach your own conclusion. In the meantime, you can visit your old school’s website to see if the worst teachers are still there – and I suspect you may well find that they are!

Justin Govier, partner and head of the employment team, IBB Solicitors

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