Bob Doe considers some of the options and pitfalls and asks if there is ever a perfect answer
In all the advice, regulations, codes of conduct and legal guides for governors, there is little or nothing about how governors should exercise their powers when called upon to settle disputes or complaints about the school. These inevitably involve questions about the actions or inactions of the head by the time complaints reach the governors, even if the original cause concerned a child or another member of staff.
Yet even the new draft code of conduct being thrashed out between heads and governors at the Department for Education and Employment (TES February 2) looks like throwing little light on the real causes of friction between heads and governors. The draft suggests complaints procedures. But it says nothing about what the role of the governors is in these and whether or under what circumstances they should contemplate overruling the head.
Are governors a kind of Ombudsman righting wrongs wherever they find them? Or are they supporters of the school and its management? Are they about justice being seen to be done for all, or balancing the interests of individuals against the welfare of the school as a whole?
Disputes come in many guises. Appeals against a decision to exclude or a recommendation to dismiss, or actions under the grievance procedure amount to complaints about the head's judgment just as much as a formal protest about the curriculum or the way a pupil or parent has been treated. And of course a governor, or groups of governors, may disagree with a particular policy or practice.
The governing body has wide powers of direction and may legally countermand most management decisions taken in the school. But governors are usually only too aware of the practical perils of undermining the authority of their senior manager and of their duty to support him or her. Some even argue governors are there to "back the head or sack the head"; to act only as a final court of appeal rather than to arbitrate on every dispute that arises.
There seem to be three or four kinds of responses governors may adopt when the head's judgement or actions are formally questioned. They may ask themselves first whether the head acted in accordance with policies and procedures.
Governors may wish to be assured complainants (and those complained of) were given a fair hearing, with due respect to their rights and feelings, and that any policy endorsed by the governors has been followed. If not, they may have to ask the head to think again.
Deficiencies in school policies, on the other hand are the governors' responsibility. But if no policy exists to cover the situation, or the policy requires the head to exercise discretion, the governors may ask whether he or she acted unreasonably. In law, the test of unreasonableness is not whether it is what you or I would have done in the circumstances but whether it is something no sensible person would conceivably have done; a test that allows of a wide range of possible actions.
In the case of headteachers, it seems fair to expect the test of unreasonableness to be modified to be something that no sensible professional acting in accordance with their duties and the interests of the pupils would do in the circumstances. But that still leaves a wide range of responses governors may feel bound to support if they allow heads such discretion.
Of course, saying something is not unreasonable is not saying it is right. In differences of opinion or conflicts of interest there is often no single right answer anyway, particularly where the facts are unprovable. So governors may well find themselves accepting an action as reasonable without necessarily agreeing that it was the best thing to do. That is likely to fall short of the ringing endorsement heads might prefer.
But in some situations, the governors are required to decide whether the head is right; to pronounce not just on what is acceptable but what is best.
This would seem to be the clear expectation where the law requires governors to "determine" an issue such as whether a member of staff should cease to work at the school or to consider whether to direct a head to take back an excluded pupil.
But in other instances where the head's judgment is queried it is less than clear when governors should be acting as judge and jury, examining evidence and retrying the case rather than simply ensuring the right procedures and policies were reasonably applied.
In practice, the decision to do this or not is left to governors; not to the governing body as a whole for it must remain uncompromised in case of appeal. This important discretion is usually exercised by a small committee or panel of governors working with no proper guidance, a great deal of trepidation and sometimes a predisposition to side with the head.
There is a fourth approach that of conciliation. Sometimes a complaints or disciplinary committee is able to ask not so much who is right and wrong but where can we go from here? Is there a step either or both sides could be persuaded to take that would avoid further recriminations? Behaviour contracts, voluntary withdrawal rather than exclusion or an undertaking to review a particular policy may break a deadlock and save face.
But while peacemaking may have an obvious appeal, governors need to be sure they are not simply interfering because they happen to have the power to on the one hand, or ducking out of their ultimate duty to balance the interests of one individual against that of all the pupils on the other.
Have you an experience to share of governors' complaints procedures in action as a governor, a head or a complainant? Do you have views on how governors should deal with disputes? If so, write to Bob Doe, The TES, Admiral House, 66-68 East Smithfield, London EC1 9XY