In the final article of our series on employment law, Maureen Cooper asks what governors can do when facedwith failing headteachers
Managing the performance of staff is the day-to-day responsibility of the headteacher; but what happens when it is the performance of the headteacher that is in question? Worse still, what happens when the general view is that the head must go?
Quite often, where there is serious failure on the part of the headteacher, an agreement can be reached to terminate employment.
In the past, early retirement or ill-health retirement was sometimes used as a dignified way out for heads no longer up to the job. These avenues have all but dried up and so a legal "compromise agreement" between the governors and the head may be used to solve the problem.
If agreement cannot be reached and the situation does not improve, then there is no alternative for the governors but to consider dismissal.
The dismissal process for the head is broadly the same as for any other member of staff: the governors' committee which has the delegated power to dismiss considers the case and there is right of appeal to a separate committee.
In grant-maintained schools, the appeal panel must consist of one independent member who has full voting powers and an even number (not less than four) of governors not previously involved. Local education authority and voluntary-aided schools must be given advice by the LEA representative, who is entitled to attend both the dismissal and the appeal hearings. For voluntary-aided schools, representatives of the diocese may also attend to give advice; but no one has voting powers except the governors.
Governors' committees really need to feel confident that they have good employment-law advice. More cases are lost at industrial tribunal for failure to follow procedure than for any other single reason. So all members of the committee must make themselves familiar with their disciplinary procedures before any hearings begin.
Usually, the chair of a governing body will have been involved at earlier stages in the rocky road to dismissal. As the line manager of the headteacher, it is practically impossible that the chair will not have known of problems. If that is the case, he or she should not sit on either the dismissal or appeal panel.
Nor, under any circumstances, should the governing body be tempted to meet to discuss a vote of no confidence in the head. Such a meeting will immediately prejudice the position of those governors on the dismissal and appeals committees. The best course of action (though sometimes very difficult when the person concerned is the head) is to keep the governors on those two panels out of any discussion so that, if they have to act, then their position is not prejudiced .
In order to comply with employment law, dismissal of a headteacher must fall within one of the five "fair reasons for dismissal".
These are conduct, capability, redundancy, statutory enactment and "some other substantial reason".
It is important to be very clear about which reason (or reasons) because if the head makes a claim of unfair dismissal to an industrial tribunal, the fairness will be tested in relation to the reason given for the dismissal.
Usually, the reason will be "conduct" or "capability" but occasionally the reason may be "some other substantial reason" - for example, if there has been a complete loss of trust and confidence in the headteacher.
Thankfully, dismissal of the head, or indeed any member of staff, happens very infrequently but when it does it can be a shock to governors to realise how unprepared they are for this task.
Ideally, governors with personnel responsibilities should have undertaken some training in these procedures, so that if the worst happens and they need to consider a case of dismissal then they can discharge their responsibilities more confidently.
Maureen Cooper works with Education Personnel Management, Huntingdon. Tel 01480 4319934