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

Leaders' surgery

PMQs

Q: I am an assistant head and I’m on maternity leave, and was for a significant part of the last school year. I’ve been denied performance pay where some of my leadership colleagues have been given a rise. When I asked why, I was told that it was all based on the previous year where I hadn’t quite met the progress target for my teaching (but did meet everything else). This is against a background of having had no performance management (PM) or pay progression for years because the former head did nothing about it. Can I appeal this?

A: Performance pay is related to both general standards and specific objectives. As you have been on maternity, it does not automatically mean you cannot get a performance-related pay rise – to avoid discriminating against you because of your ‘protected characteristic’ (pregnancy and maternity) under the Equality Act 2010, the school should make the ‘reasonable adjustment’ of ‘presumed performance’. This is based on case law. Presumed performance is where the school assesses what your performance would have been if you had been in school the whole year. If in the part of the year you were there, it was clear that your ‘data’ group were on track, and other standards and objectives were being met, then it is ‘reasonable’ to assume that this would carry on. For the school to automatically take the previous year’s PM outcome and use that is not good enough. The grounds for your appeal would be ‘discrimination’. In terms of the past, you really should have been more proactive and demanded that objectives were set and the performance pay system used, and if you were getting nowhere a call to Hotline could have elicited the correct support to make sure that you had your entitlement. Equally, If you have missed the normal performance management cycle of objective setting as you return from maternity, ask for this to happen; if it doesn’t and you need some advice, you could contact the ASCL Hotline.

Advice over ‘prohibited’ employees

Q: I am a principal of an academy. I appointed a teacher last September and, in April, she moved on to another school. One of the pupils has found out from the Internet that she was prohibited by the National College for Teaching and Leadership (NCTL) in January and the young person’s mum has brought this to my attention. Have I done anything wrong – no one told me she had been barred?

A: First, the NCTL ‘prohibits’ people from acting as a ‘teacher’, whereas the Disclosure and Barring Service (DBS) informs you where someone has been ‘barred’ from working with children because of criminal behaviour. When you first employ someone, you are required to check both the DBS records and the ‘employer access online’ service that lists a teacher’s qualifications, and if they have been ‘prohibited’. At the time you appointed, both these were clear so you had carried out your pre-employment duty correctly.

In this case, a previous employer made the referral to the NCTL, and they really should have told you this in the reference. NCTL does not have a duty to inform the current employer when they prohibit, and equally there is no formal requirement for the courts to inform an employer of a conviction. The duty firmly rests with the employee to inform the employer of any convictions or of ‘prohibition’. If you have a dishonest employee, this may well not happen and so lead to you employing a prohibited teacher – and, for this, the employer could be in trouble.

However, if you act as soon as you know, you can fairly dismiss the teacher – either for gross misconduct for not informing you, or for not having the relevant qualifications, both of which are ‘fair’ in employment terms. In this instance, if you know where your ex-teacher is now teaching, you should pass the prohibition information onto that school for them to take action.

Work/life imbalance

Q: I am a deputy headteacher and I have been at my present school for five years. We are a school in special measures; we’ve become an academy, and now have a new head who is a workaholic. She bombards me with emails all the time demanding quick responses – this has now spread to evenings and weekends, and I often get a whole list of things on a Saturday she wants for Sunday. My family are fed up and so am I – I need some time to myself! Can she make these demands?

A: No, she can’t. The employer has a duty of care towards you as an employee, and this type of ‘24/7’ behaviour is not demonstrating that care. There are also provisions within the School Teachers’ Pay and Conditions Document (STPCD) that protect you. Even if the academy for new appointments does not follow the STPCD, as you TUPEd in to the new academy from an LA school, you are still covered by the provisions. The first provision is that the head is required to have care for your ‘work–life balance’. This has been a provision since 2003, and it is unreasonable to expect you to be on duty and answering emails all the time. Also, dating back much further, there is a provision in the STPCD that means that teachers (including those on the leadership) cannot be required to work on Saturdays and Sundays. So, you can justifiably not ‘work’ by not responding to emails. Although it may be difficult in this ‘continuous communication’ world, we would suggest that you don’t access your work emails out of work time. It would be wise to have a ‘private’ phone for your family that is separate to the ‘work’ phone. You could also request to have a civilised discussion with the head about your work–life balance.

David Snashall is ASCL Hotline Leader.

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