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‘We expect the arrival of performance pay to trigger a jump in the number of tribunal cases’

Leon de Costa, chief executive of Judicium Education, an employment law consultancy, writes:

To say 2014 is set to be an eventful year for the UK's schools and academies is a tremendous understatement.

In September, the much-anticipated implementation of the new performance-related pay (PRP) framework will see many teachers rewarded for over-performance and others passed over because of under-performance – or average performance.

Nobody knows exactly how it's going to play out, but it’s a cast-iron certainty that emotions will run high. PRP is highly divisive.

But I'm not going to dwell on the merits or otherwise of performance-related pay here. Enough has been written – and is being written – on that.

My concern is more with the legal ramifications of the new PRP framework for schools.

I’ll cut to the chase: we expect the arrival of PRP to trigger a rise in the number of tribunal threats by employee representatives, often unions.

We're not expecting to see a huge surge on day one, as many aggrieved parties will be aware that the spotlight is on them and sit tight. It would take a brave teacher to resign immediately and make a case for constructive dismissal.

But schools need to prepare themselves now for an increase in threats of legal action in the wake of the new pay framework.

Tribunal threats are likely to come in many guises, eg, discrimination claims, equal pay claims, constructive dismissal claims, increased pay appeals and disputes between appraiser and appraisee.
We also suspect that PRP will open a Pandora's box and bring other personal and professional issues to the surface, not least stress-related absence and regular sickness.

In short, the cases that will be brought against schools are unlikely to be clear-cut, but will crystallise a number of issues that have been raised during the assessment period, and in some cases historically

There's no doubt that a lack of preparation before and during the assessment period will catch many schools out.

Under the new PRP framework, schools should, by now, have codified their objectives, clearly outlined the timetable of the assessment period and ensured that the assessment criteria are transparent, objective and consistent.

The link between pay and performance has to have been made crystal clear and all pay-related decisions moderated in order to protect against claims of subjectivity and favouritism.

Schools also need to provide concrete evidence about why they have come to a specific conclusion regarding an individual teacher’s performance.

In short, if they're not going to reward a teacher, they need to have a good reason why – and back that reasoning up with hard facts.

If they are not gathering measurable performance data for each teacher in readiness for appraisal, they are far more likely to suffer a negative outcome during any resulting tribunals.

Proactive and robust HR will get schools through PRP largely unscathed and stem the potential rise in tribunal claims, employee and trade union issues.

Poor HR practice, on the other hand, and a lack of preparation generally, will almost certainly cause some schools to come unstuck. Fail to prepare for PRP and, as the saying goes, schools should prepare to fail.

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