Michael Gove, Education Secretary, thinks the current rules lead to bad teachers being tolerated for too long. The rules on teacher performance management are currently set out in two sets of regulations and in a model capability procedure for teachers issued in 2000. Schools are required to implement a performance management policy for teachers and the regulations specify what the policy must include.
Schools are also required to have a capability procedure for dealing with poorly performing teachers, which must have regard to the model capability procedure. There are significant areas of overlap and duplication between the performance management procedures and the capability procedure. The Government considers that this makes it difficult for schools to know which route to go down, leading to a protracted and onerous process.
The current rules will be replaced by a single revised model policy, a draft of which is now subject to consultation. The model policy is divided into two parts. Part A covers appraisals and part B contains a capability procedure for use when there are serious concerns about a teacher's performance that the appraisal process has been unable to address.
The new model policy is not compulsory but is an example of the sort of policy that schools might want to adopt when managing teacher performance. The timing and stages suggested in it are indicative only and it is designed to help schools to develop their own procedures.
The current model policy provides for an upper limit of two terms, or 24 weeks, for the formal assessment of a teacher's capability. The new model policy suggests an assessment period of between four and ten weeks to determine whether the teacher is able to meet the required standard, providing this is reasonable in the circumstances of each case and gives enough time for improvement to take place.
This will mean a school should find it easier to justify to an employment tribunal that a period of review of up to ten weeks was a reasonable amount of time to give a poor performing teacher to improve. Employees in other sectors do not always have prescribed minimum periods for assessment and if they did it would be unlikely to be for as long as 24 weeks.
All employees with at least a year's service are protected against unfair dismissal and a school dismissing for poor performance will need to show that it applied a fair and reasonable procedure when dismissing. The length of time the employee was given to improve will be important in showing that a dismissal was fair and schools should bear in mind the qualification to the new model policy that an acceptable period of time for assessing performance depends upon the circumstances of each case.
Ten weeks may not sound long but the capability procedure is only invoked after concerns about performance have been identified in the appraisal process and the appraiser is not satisfied with the progress made. Given that the appraisal period normally runs for 12 months, schools are likely to feel that giving the teacher a further ten weeks to improve satisfies the legal obligation to act reasonably in treating performance as a potential reason to dismiss.
Schools are likely to welcome changes that give them more flexibility in how they deal with performance issues. Legally the model policy does not have to be followed to the letter. However a school that adopts a procedure that does not comply with the minimum requirements of the model policy may have to justify this deviation to an employment tribunal which, if relied on by the claimant employee, may take the model policy into account in determining whether a dismissal was fair.
If the changes meet their objective by enabling schools to more easily dismiss poor performing then this could lead to a rise in unfair dismissal claims by teachers. No employee likes to be told that their performance is not up to scratch and the shock and emotional response can often be to contemplate employment tribunal litigation, whatever the merits of the claim. Whether the changes will make it easier to defend a claim will have to be seen.
Ben Stepney is a solicitor at Thomson Snell & Passmore, a Kent based law firm
