Crimes of punishment
When Simon Steen's commercial clients sack any of their employees they usually act reluctantly and try to be fair. Managers in the companies he advises tend to become less personally involved and are keener to avoid legal challenges than the headteachers and school governors he comes across.
"That's not to say that the vast majority of schools don't get it right too, and you never hear about them," says Mr Steen, who heads the employment law department at Hull-based solicitors Gosschalks.
"But where the matter reaches an employment lawyer, it is often the case that it's gone beyond a pragmatic decision about how to deal with someone and is a matter of personalities. There has been a long history of difficulties and both sides are very polarised."
Detailed procedures laid down in statute are supposed to make sure that state school teachers accused of misconduct or incompetence are treated at least as fairly as private-sector employees.
But the rights and obligations of those involved in disciplinary issues are less clear-cut in schools than in industry. Even if school governors have merely rubber-stamped a headteacher's decision to sack someone, they are named as the respondents if the case reaches the courts or an industrial tribunal.
But it is often local education authorities, as the employers of teachers in locally-managed schools, who pick up the tab if the case is lost. Simon Steen believes this complex legal position leaves school governors and headteachers feeling less accountable for their actions than managers in industry. His firm regularly acts on behalf of Redress, a voluntary body that gives legal advice and support to teachers and headteachers who claim they have been unfairly dismissed or victimised.
Since it was set up in 1995, Redress has taken up the cases of around 600 teachers, often when their unions have given up on them. In many of these cases governing bodies and senior school managers have not bothered to follow competency procedures, sometimes holding hearings to consider dismissal without first going through the stages of supporting, monitoring and warning failing teachers.
But according to Redress national secretary Jenni Watson, the most common type of procedural abuse is where people are charged with misconduct when they should be put through competency proceedings. "Gross misconduct is the only offence people can be sacked for straight away, and it is used and abused appallingly," says Mrs Watson.
Where headteachers complain about such abuses, they often cite a long history of governors interfering in the day-to-day management of the school. One former Essex head, for instance, describes how he was suspended and then forced to take early retirement on health grounds after the chair of his school's governing body repeatedly made trivial and unsubstantiated complaints about him. His alleged misdemeanours ranged from allowing a child to answer the phone to failing to produce the school development plan - which had already been circulated to governors.
But while those whose job it is to defend teachers believe governors are too ready to dismiss staff, the chief inspector of schools, Chris Woodhead, has complained that in "a small but worrying proportion" of schools governors are not prepared to deal with serious weaknesses in teaching or leadership. And some governors seem happy to leave staff discipline to their LEAs, almost as if local management of schools had never been introduced.
In theory the new outline capability procedure recently agreed between the teacher unions and teachers' employers should put a stop to some of the abuses that have kept Redress and its lawyers busy. The procedure makes a clear distinction between capability and misconduct. It also stresses the need to identify performance problems early on, to support and set targets for struggling teachers, and to start formal action if these fail to produce improvement after a specified period.
The new procedure is not quite as fast-track as it has been made out to be. Rather than making it possible to dismiss teachers within four weeks, as widely reported, what the proposals actually say is that in extreme cases "the period given for improvement after the date of a formal warning will be no more than four weeks".
"The new procedures clarify good practice and should reduce the amount of abuse," says Nigel de Gruchy, general secretary of the National Union of School Masters Union of Women Teachers.
But he predicts that with schools facing mounting pressures from league tables, benchmarking and target-setting, the number of competence cases will continue to grow. This may say as much about the quality of management in the schools concerned as about the performance of their teachers.
Martin Pilkington, head of legal and member services at the Association of Teachers and Lecturers, which in the 199697 academic year dealt with 350 competence cases, compared to just 16 in 199293, says that searching questions need to be asked when a teacher's performance is apparently not up to scratch.