FE Focus invites legal experts to give advice on key issues of the day.
This week John Hall and Diane Gilhooley look at college governance THE ISSUE
The college corporation is incensed over interference by the Learning and Skills Council in the affairs of the college, including pressure to merge with another college and to appoint a new principal. Staff morale is low and a vote of no confidence in the senior management team has been passed recently.
The governing body of 14 includes six business and three community governors. A meeting of the corporation is imminent and the clerk has just been told that the business and community governors have had enough and have threatened to resign immediately en bloc.
Can they do so and how should the corporation chair respond to the vote of no confidence?
John Hall, chairman of the education group at the international law firm Eversheds, writes:
if all nine disaffected governors resign, only five will remain to attend the meeting of the corporation. This is less than the 40 per cent threshold for a quorum required by the college's instrument.
To avoid the paralysis of corporation business that would result from a lack of a quorum, the clerk could invite the Secretary of State for Education to appoint at least one new governor under clause 5 of the instrument to bring up the number of governors present at the meeting to 40 per cent. This would keep the wheels of corporation business moving but amount to a mark of failure by governors to act responsibly.
Of course, governors have a legal right to resign from office at any time by giving written notice to the clerk, although the right must be exercised individually and not en bloc.
It is questionable whether to resign in such numbers in the context of LSC concerns is consistent with the duty of governors to act in the best interests of the college or with their responsibility under the Articles of Government and charity law for safeguarding the college's assets.
How much more responsible would be a decision by governors to put their letters of resignation on hold for the time being and instead engage the LSC in robust dialogue about the college's future, resisting attempts to change the principal until the case for merger has been thoroughly explored.
Diane Gilhooley, the head of Eversheds' education human resources team, writes:
the chair should not immediately take action on no confidence votes, in my opinion. Under employment law they have little, if any, effect and bypass known and agreed college procedures.
Individual members of staff can use a grievance procedure and if concerns are collective or union led, the appropriate mechanisms for dealing with disputes of this nature will usually be set out in collective agreements between recognised trade unions and the college.
The chair may, therefore, decide to ignore the vote altogether, since to allow individuals or unions to bypass agreed processes that comply with natural justice risks undermining the stability of the college and could give senior staff grounds for complaint.
If the chair considers that there may be significant issues behind the vote of no confidence, the corporation may be asked to look at particular issues or the relationship between staff, unions and senior management team. Only after investigation should corrective action be taken, should it appear necessary.
Given that no confidence votes often hit the press, the corporation should ensure that it has a clear crisis management strategy and spokesperson in place and governors should not act independently.
Eversheds' education team has created an online service that meets the needs of clerks at FE and sixth form colleges in England, and a 24-hour telephone helpline with access to a team of experts. For further information, contact email@example.com