Under generic employment law, staff owe their employer a duty of ‘honesty and loyalty’ in their service. This often comes up in calls to the hotline, both where our members are the employee and when they are acting for the employer. Here, ASCL Hotline Leader David Snashall talks about three real situations from the calls received recently through the hotline.

Leaders surgery

True colours?

Q: I am an assistant headteacher. I admitted I have done something wrong and now there is an investigation. The evidence is presently flimsy, and I am planning just to deny the allegations. Is this OK?

A: In simple terms, no! You have a duty of honesty to your employer, and at the point of investigation you are under an employment obligation to answer your employer’s questions honestly – so if you get asked, “Did you do it?” and you answer, “No”, then you are not being honest. If you would rather not comment, then this is a better course of action than an outright lie, but the employer may draw his or her own conclusions. If you are caught out lying (for example, more concrete evidence comes to light), then in both employment terms and in professional terms this is very serious.

For your employment, lies may be regarded as gross misconduct as you have broken the duty of honesty. For your professional career, the various regulatory bodies have, over time, taken a very dim view of teachers lying, particularly if the blame is put elsewhere, and they may ‘strike you off ’. 

Of course, if you were in this situation, we would allocate a field officer to support you, and we would do all to mitigate the risk to your employment by whatever you did wrong in the first place.

Between a rock and a hard place?

Q: I am a headteacher. My governors elected to join a multi-academy trust (MAT), which has grown, and they now regret that decision. They have asked me to seek ways to leave the trust, but I have now had a letter from the chief executive of the MAT telling me to desist and not speak against the trust. Don’t I have to follow my governors’ instructions?

A: In a maintained school the governors act as the employer, and indeed you would have to follow their instructions. However, the situation here is very different.

In joining a multi-academy trust, the governors have surrendered their employer duties and power, and indeed all of their power, to the multi-academy trust. All members of staff will have been transferred through the Transfer of Undertakings (Protection of Employment) regulations (TUPE) process to the MAT. Although the ‘governing body’ may be exactly the same people as before the transfer, they now only have such powers as the MAT chooses to give to them; the legal minimum for an individual school is to have an elected ‘parent advisory’ body. So, if the trust behind the MAT retains the employer function, then your duty of loyalty becomes absolute to the trust, and you would have to follow the chief executive’s instruction or risk disciplinary action being taken against you on the grounds of disloyalty.

In the circumstances described, the MAT could withdraw any delegated powers from the ‘governors’, and it is extremely unlikely that they could then mount a campaign against the trust, as the trust is responsible for all of the school funds. It is almost certainly the case that there is less flexibility for a governing body to direct a headteacher within a MAT arrangement than there was for them as a maintained school.

ASCL members concerned about leadership issues should call the hotline on 0116 299 1122 or email hotline@ascl.org.uk

Union advice

Q: I am a deputy headteacher. The union rep from one of the classroom unions is stirring up trouble both in the school and in the local press because she is philosophically against a change of curriculum within the school.

A: It is a common belief that school union reps are untouchable when they say things against the school or their employer – however, this is not the case. Union reps are still employees and have the same duty of loyalty as any other employee. Reps have a legitimate role in representing the views of their fellow union members to the employer, and indeed representing the views of their national organisation; the rep legitimately can, and does, even try to persuade fellow members to take a particular stand or hold a viewpoint. However, in pursuing these allowable aims the rep still has to operate within the policies of the school and show the generic duty of loyalty to the employer.

Legitimate union activity basically concerns the employment conditions of members of the union. If the focus becomes denigrating to the employer, or acting in an unprofessional way against the ‘code of conduct for employees’, then the employer can – indeed should – look at taking disciplinary action. A union rep stating internally or even eternally, the ‘opinions’ of the members, without ‘slagging off ’ the employer, is borderline but still probably within the law as far as ‘loyalty’ would go.

In this case, it is likely the union rep is going outside her duty of loyalty, as the campaign seems to be to do with approach rather than conditions of service. We do of course remind ASCL members that they are not the employer, and they should not take policy decisions on behalf of the employer.

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