A divided governing body can be deadly, so prospective heads should find out all they can before joining a new school, says Richard Bird.

Sink or swim?

When my father was offered a headship, he asked a question of the governors: Had the decision on the future of the school been unanimous?

The governors shuffled. It was clear the decision was not.

"I am going to have to decline," he said.

I forget now precisely how long the 'successful' candidate lasted but it was no time at all. He was sunk by in-fighting between governors.

Many governing bodies work extremely well but when they don’t, it can be a minefield. A clique may hijack proceedings and make life extremely difficult. In Connor v Surrey County Council, it happened to be a group of religiously motivated governors but other cliques have had less idealistic motives.

'Man dressed in a little brief authority' also describes chairs who forget (or never knew) that in law they can only operate as individuals when it is impractical to call the governors together or when there has been explicit, minuted delegation to one person from the governing body as a whole.

Other problems include a governor who undermines decisions or an out-of-control union rep (in some borough authorities, not so much 'out of control' as 'in control'). Then there are issues such as an undeclared deficit or over-staffing which lands an incoming head with a tricky financial problem and redundancies.

The operational legal position of academies sometimes considered as vague as the law ‘West of the Pecos,’ and less rigorously enforced. In some chain academies, the problem may be that the chief executive wields powers considerably greater than any CEO has enjoyed since local management of schools came in. An incoming head may sign up to deliver instant targets that, once in post, are clearly unrealistic but find the chief executive demands they must be hit by hook or by crook.

Blame game
It isn’t just heads who should tread carefully. Other leadership team members may find on taking up a post that they are given no authority or that they are expected to take the blame or massage figures.

Of course, these are exceptional situations. Usually the ups and downs of school life run their course, but where things are extreme can the law help?

Local authorities have a statutory d duty to intervene in maintained schools where poor governance puts the success of children at risk. In Connor, the LA was found negligent because its failure to intervene led to damage to the health of the head which, along with the constant conflict, the judge considered must have affected the children.

However, that case involved a school where the LA was the employer. While the authority would be in breach of statutory duty if it failed to act in a foundation or voluntary-aided school, it has no duty of care for the head.

All maintained schools are public authorities and it is possible to take them to court for failing to act reasonably.

Whether an academy is in law a public authority has not been determined conclusively. Certainly, though, the secretary of state has the power to cease to fund an academy. This is entirely possible in contractual terms, though it would be politically embarrassing.

Academy chains
As the number of academies increases and some academy empires look to vastly exceed the size of some present day LAs, more modulated legal methods of correcting problems will be developed. They have not been yet.

It may be that a case could be made that the Secretary of State was acting unreasonably in not intervening. But law is a last resort when no other reasonable alternative presents itself. Even in victory the cost of such an action would hugely outweigh the gain.

So what about employment law? Many of the situations above certainly constitute constructive dismissal. However, awards at employment tribunal are capped (unless discrimination can be proved) at a level which is lower than the salary of many senior leaders.

Given that even successful action may blight future applications, the best answer may be to get out quickly, either with a compromise agreement or by a successful application to a more congenial school. The collateral damage caused by a lawsuit is not pretty.

What can you do? Check the local gossip, ask where your predecessor has gone, make sure you see the books and that you challenge the targets before you accept the post. Use your antennae to get the feel of relationships between governors and within the team.

Some jobs need courage. But as Aristotle said, there is timidity and there is recklessness. Courage is in between. Not all jobs are to die for.

• Richard Bird is ASCL's legal consultant
  

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