Governance

Inner resources

Employment legislation changes on a frequent basis and covers a broad spectrum. Yet the most common areas of concern for schools are poor performance and flexible working requests. Anita Bird reports

The more laws, the less justice,” commented Cicero in Rome in 1BC, and many of us would echo that observation today. Employment law is no exception and the minefield of regulations and guidance seems to grow exponentially each year. During 2009, we saw new guidance on dispute resolution (disciplinaries and grievances), extended rights to request flexible working and an increase in statutory holiday entitlement; 2010 is no less busy with the extension to paternity leave and pay, a change from “sick note” to “fit note”, and a single Equality Act.

This ever-increasing and changing raft of employment legislation can be daunting, with employees seemingly being given a growing number of rights. Schools can feel that their freedom to act in the interests of the pupils and the organisation has been seriously curtailed. Yet the cards are not all stacked in the employees’ favour, and a school, having thought carefully about the right course of action, can usually achieve the desired result. Let’s examine two common areas of concern: dealing with poor performers and managing flexible working requests.

Improving performance
“Are all my staff pulling their weight?” If you have asked yourself this question over the last 18 months, you are not in a minority. A recent Chartered Institute of Personnel and Development (CIPD) survey reports that the recession has brought a greater emphasis among employers to ensure that individuals and teams are focused on the things that matter and that resources are not wasted. And at the individual level, many headteachers, proprietors and governors, keen to avoid drastic measures such as redundancies, are turning their attention to ensuring that each staff member is performing as needed.

For the many stellar performers, the challenge is to motivate and engage them in their work; the recession may be reducing employee turnover, but it can also dampen spirits. The poor performers, of whom there may be only a few, pose the greater challenge; maybe they have been protected by other staff members for years, perhaps their shortcomings have been tolerated to avoid rocking the boat. Whatever the history, many schools can no longer afford, either financially or reputationally, not to address the issue.

Easier than you think
It is an urban myth that nothing can be done about a poorly performing teacher. The new guidance on disciplinary and capability procedures, while requiring an employer to act fairly, actually removes the previously formulaic process. And teaching performance does not have to be judged on exam results; it is perfectly reasonable to use evidence from issues such as classroom management, ability to differentiate work and ability to plan and structure lessons. If a school is able to identify the areas of weakness and cite examples, then it will be able to set the required objectives and provide reasonable support to the teacher, ultimately resulting either in improved performance or a fair dismissal.

While a successful outcome is possible, the process can be daunting for the line manager, even an experienced one. No one relishes potential confrontation or giving negative feedback, especially with a colleague with whom one works every day. The line manager has to strike a careful balance between providing the staff member with support and ensuring that the standard of teaching reaches the school’s aspirations.

More often than not, the key to achieving a successful outcome is strong support for the line manager, to help identify and define the school’s concerns, to set up an understood framework of monitoring and review of the staff member and, most importantly, to coach the line manager on the content and tone of the review conversations with the staff member.

If managed carefully and fairly, the staff member often comes to accept their style or abilities do not fit with the school and, before the conclusion of any process, they resign or seek an agreed departure, an outcome which invariably suits both the school and the staff member by minimising reputational damage to both.

The ultimate flexibility
In 2009, the right to request flexible working extended to staff members with children under the age of 16, thereby increasing considerably the number of staff eligible. Stories in the press and the expectations of employees have given the impression that staff members have a right to work for the number of hours and at times of their choosing. This is compounded by the fear that, if a flexible working arrangement is agreed for one staff member, it must be agreed for all. Thankfully, these impressions are not accurate.

Firstly, while it is incumbent on a school to treat all staff members fairly and equitably, the law does not require a school to offer the same terms to each staff member. For example: a school has three full-time posts in the nursery team, it may be able to accommodate two part-time staff members sharing one of the posts, but for purposes of continuity of teaching etc, it may be perfectly legitimate to require that the other two posts are undertaken by full-time members of staff. Clearly, each case must be judged on its merits, and the circumstances of each school will be different. But we need not assume that just because the school has agreed to two members of staff working part-time, that it cannot refuse if a third staff member requests similar flexibility.

Secondly, the right of the staff member is to request flexible working and to have that request fairly and objectively considered. The staff member does not have the right to demand working hours and times to suit them. An important, but often forgotten, plank of the legislation is that when a staff member makes a flexible working request, which must be in writing, s/he must include consideration of the effect that this will have on the school and the measures that could be taken to mitigate any detrimental aspects. This requirement is useful in helping the staff member to think through the consequences of their request, and it provides a starting point for discussion between the school and the staff member. So if you receive a flexible working request that does not address this area, ask the staff member to consider these aspects and to re-present their case.

Keep your options open
Within the flexible working legislation there are reasons that an employer may use to justify turning down a flexible working request. Being familiar with them, and having considered the full circumstances of any request, will put the school in a strong position to achieve an outcome with which it feels comfortable.

Again, talking through the issue openly with the staff member, with a supporting plan of action, will be key. Schools that may not be able to accommodate the staff member’s initial suggestion may be able to offer a viable alternative, and the option always remains to put in place a temporary working arrangement to trial the suggestion, prior to committing to the permanent contractual change that an agreed flexible working request provides.

The inevitability of more laws, whether home-grown or from the EU, seems as certain as death and taxes, but it is important to recognise that employers’ groups have been more successful than it would first appear in protecting the interests of businesses. In any event, the law is only there for when things go wrong.

Schools will require professional support in some of the more complex areas, and must familiarise themselves with the regulations and guidance provided by organisations such as ACAS. But most situations will be most successfully resolved by open, fair and firm communication between the staff member and their line manager, so investing time in this relationship can avoid the need to resort to the law.

Anita Bird is a consultant for Octagon Human Resources. Anita can be contacted on anita@octagonhr.co.uk.

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