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Who should define 'bad behaviour'?

Maureen Cooper looks at misconduct

A governor who considers a case of misconduct or gross misconduct acts, with the other governors on the dismissal committee, as the employer in grant-maintained or aided schools or on behalf of the employer in local education authority schools with delegated budgets.

Governors with the power to dismiss (including the headteacher) must have some understanding of the basic principles of the duties and responsibilities of an employer.

"Misconduct" means, in law, behaviour which the ordinary person would recognise as unacceptable. The school will have a set of disciplinary rules which lay down, in principle, the kinds of behaviour which would be regarded in the institution as "misconduct": for example, dishonesty, neglect of duty, abusive behaviour and so on.

"Gross misconduct" is a step further, so serious that it justifies dismissal without previous warning or notice (or pay in lieu).

For this reason, the employee is suspended, usually by the head - or the chair of governors if the matter relates to the head - as soon as this test is satisfied. Suspension, which is on full pay, is technically a neutral act.

A chairman for the dismissal committee is normally elected on the day. The governors should have a local authority officer, or other adviser in the case of a GM school, to give guidance on the law, on procedure and the merits of the case. The committee of governors must consider the case objectively and should not be biased or have reached a view before formal consideration of the matter.

Hearings sometimes take a long time and can run into more than one day. Governors should consider the matter in one sitting without any adjournments, if possible.

This helps to keep the evidence fresh in everyone's minds and avoids prolonging the agony for the person whose job is at stake.

The employee ought to know before the hearing:

* what misconduct is alleged andor which disciplinary rule has been broken;

* what documentary evidence is to be used- copies of anything that will be used at the hearing should have been made available to the employee beforehand;

* who the school is going to call as witnesses;

* that it is his her right to present a "defence" and to be represented.

The governors will usually hear the school's case first, then the employee's case. The chair of the committee should ensure that all evidence and arguments are properly considered, with opportunity for questions by both sides.

The governors should try to establish:

* has a thorough investigation been carried out? It is not necessary to prove the case "beyond reasonable doubt", but governors should be confident a thorough investigation has established the facts;

* has the school's procedure been followed? Dismissal for misconduct (unlike gross misconduct) is likely to be unfair if there are no previous warnings;

* what is the quality of the evidence? The decision should be made on direct evidence presented at the hearing through witnesses and documents. Hearsay evidence - where the witness is reporting what someone else said - should be avoided if at all possible;

* is dismissal fair and reasonable in the circumstances?

Above all, remember that an employer should act consistently and the penalty should be reasonable in relation to the misconduct.

The committee should consider any "mitigating circumstances" before reaching a decision on whether or not to dismiss.

For example, a teacher who has misappropriated the school-trip fund may say that it was done while under stress and that such behaviour is out of character. Governors will need to decide what weight, if any, to attach to mitigating factors and whether or they should reduce the penalty from dismissal to, say, a first and final warning.

Governors should look at length of service. A basic rule of thumb is the longer the record of unblemished service of the employee, the less hasty the dismissal should be.

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