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Education: Note these changes

21 September 2012

New rules are now in force for assessing, and sacking, under-performing staff. Howard Dellar reports

BEHIND the Education (School Teachers' Appraisal) Regulations, which came into force on 1 September, is the Government's wish to prevent the recycling of under-performing teachers. It creates a more favourable playing- field for schools, governors, and local authorities, and brings to an end the previous process. Most church schools will be affected by these changes.

The Department for Education suggests that these procedures are intended to be less confrontational, less bureaucratic, and generally quicker than the previous regime. The Government's view is that schools need to be able to dismiss those who do not perform to the expected standard.

The new appraisal procedures apply to head teachers, and teachers in local-authority-maintained schools, and are designed to make the process less prescriptive than previously. For example, lesson observation by the appraiser will no longer have to be three hours. It could last for a longer or shorter time, as deemed appropriate by the governing body or local authority. These will also have freedom to decide on other matters where there is currently no flexibility.

The teacher's performance will be assessed objectively against the relevant Standards for Teachers, as directed by the Secretary of State, whereas previously the standards were seen as a mere backdrop to discussions about performance management. The Government has also issued a new model policy that deals with appraisal and capability issues, which, it is anticipated, will form the backbone of most schools' policy on the subject.

As was the case under the previous regime, teachers must still receive an annual written assessment of their performance, along with an assessment of their training and development needs, and, where relevant, a recommendation on pay-progression. There is no change here.

Governors will also have to appoint an external adviser to assist with the appraisal of the head teacher.

Capability procedures apply only to teachers and head teachers about whom there are serious concerns that the appraisal process has been unable to address. The monitoring and review period after a first warning has been shortened from the previous 20 weeks to between four and ten weeks.

It is important to note that the review period must be reasonable, given the circumstances of each case, and must provide sufficient time for reasonable improvement to take place. Prescribed notice provisions are required when engaging the capability procedure, and, if necessary, advice should be sought to ensure compliance.

The new model policy sets out an ACAS-compliant model on capability policy that schools might like to follow. It is also important to remember that the School Staffing (England) (Amendment) Regulations 2012 now require maintained schools to provide details about whether a head teacher or teacher has been subject to capability in the previous two years.

While the new appraisal regulations do not apply to academies, free schools, and independent schools, the governing bodies of such schools would be well advised to consider implementing similar procedures, as it is likely that the Government will introduce similar regulations into their funding agreements for academies.

Howard Dellar is an education specialist at Lee Bolton Monier-Williams, legal advisers to the National Society.

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