The deregulation of the teacher pay system may offer headteachers more flexibility. But it also brings new dangers for unwary school leaders.
Headteachers’ unions and the Department for Education have warned schools to be careful not to discriminate against particular groups of teachers as national salary scales disappear and performance-related pay is introduced.
But new figures from the NASUWT teaching union suggest that these warnings may not always be heeded, leaving school leaders more vulnerable to challenges under antidiscrimination legislation. The results from a pay survey of NASUWT members conducted in November include worrying figures on the situation for black and minority ethnic (BME) teachers, compared with the rest of the profession (see box, right).
The survey suggests that BME staff are more likely to have missed out on a pay rise this school year. More than two thirds – 67 per cent – of BME respondents had still not received, or had confirmed, the 1 per cent cost-of-living award recommended from September, compared with 57 per cent of all teachers who responded.
Chris Keates, NASUWT general secretary, said: “These results confirm that there is widespread discrimination.” Any suggestion of that could see schools taken to timeconsuming, and potentially costly, employment tribunals. Unions have been concerned about potential discrimination of staff with “protected characteristics” under the Equality Act 2010 – including race, gender, age, disability and religion – ever since schools were told that they would no longer have to issue automatic annual rises.
Risk of legal cases
Headteachers’ associations said that their members needed to monitor decisions carefully to ensure that discrimination did not occur and no legal cases could be brought.
Valentine Mulholland, policy adviser for the NAHT heads’ union, said: “Headteachers should be acutely aware of the equality impact of decisions. There should be a level of moderation by the headteacher to consider whether there are any inconsistencies.”
DfE advice says that heads should “maintain records of decisions and recommendations made, demonstrating that all decisions are made objectively, fairly and in compliance with equalities legislation”.
Lawyers have stressed that discrimination can occur, as far as the law is concerned, even if it is unintentional and unwitting.
Unconscious bias is a “big problem in schools”, according to Ed Mills, an employment partner at London law firm Travers Smith. He told TES that many employers lost discrimination claims because they had not kept clear, documented evidence on their decisions when selecting candidates for jobs or pay rises. “Even though there may have been a perfectly good, objective reason for choosing one person over another, if the paper trail does not support it, an employment tribunal might believe that discrimination played a role,” Mr Mills explained.
“Similarly, clear evidence of performance appraisals and feedback is key. Many discrimination claims arise when an employee is unhappy about performance management being carried out.”
When bringing a claim, an employee only needs to show on the face of it that there may have been discrimination.
Mr Mills added: “Schools can improve their ability to successfully defend discrimination by training their teachers and staff in diversity and discrimination, operating a clear equal opportunities policy and disciplining discriminators for gross misconduct.” He said that the majority of discrimination complaints and claims were for race or sex discrimination – either direct or indirect discrimination.
But Sara Ford, pay, conditions and employment specialist for the Association of School and College Leaders, noted that another “protected characteristic” can often be overlooked – age. She said that pay data from a number of large academy chains had shown that teachers of more than 50 years of age were significantly less likely to receive pay progression than their younger counterparts.
In one academy trust, 43 per cent of staff aged 50-plus had received pay progression against a trust average of 63 per cent, and other chains had shown a similar differential.
“Further investigation may show that each individual decision is appropriate, but as an employer you need to know if there is a potential issue,” Ms Ford said.
The key is for all schools and academy chains to check the profile and characteristics of teachers who got pay rises and compare them against teachers who did not. This can be a complicated exercise, said Ms Ford. But she added: “Just because it is difficult, doesn’t mean you can ignore it.”