A disciplinary issue involving a school leader highlights important questions about the respective legal responsibilities of governors and local authorities, says Richard Bird.

Who’s the boss?

Everyone understands that governing bodies which are employers are the sole correct respondents in employment cases involving staff they employ.

Initially, there was a grey area for maintained schools where the local authority (LA) held the employment contract. However, a series of cases established that those governing bodies were the correct target for claims where they were directly at fault because they exercised the power to appoint, promote and discipline (discipline includes dismissal).

But what if there have been improper actions by the local authority or another agency to which the LA had ceded executive powers? Are the governors responsible for those actions as well? Apparently they are.

Grievance procedure

A headteacher alleged that a local authority and an agency which had assumed the LA’s executive powers had instructed and/or encouraged members of staff to complain directly to them in writing about her, rather than using the governing body’s grievance procedure, with the sole intention of gathering sufficient material to dismiss her.

She also claimed that the LA and agency had deliberately not disclosed the existence of these complaints to the claimant and governors and that, even when they were divulged, provided no specific detail until a year later.

They were then supposed to have issued a letter containing ‘completely baseless’ allegations to put the maximum pressure on the governing body to suspend the claimant with a view to dismissing her as well as blocking pay awards to her approved by the governors.

The governing body had resisted suspension on the grounds that there had been an agreement to draw a line under the allegations and that, at a previous meeting, they had decided that suspension was not warranted. Governors also had not seen the letters of complaint.

Performance

They did eventually suspend the head as a result of repeated threats made by the LA and its agent to remove the governing body if it did not comply with their ‘requests’. The suspension was implemented immediately after a successful performance review through which she was awarded a two-point performance pay rise.

All three defendants, it was claimed, planned an immediate public announcement to staff that the claimant had been suspended.

Although an assurance was given that the suspension would remain confidential and it would be announced that she was on leave, “the damage had been done.” The contents of a confidential report were leaked by someone to the press.

Finally, there were further allegations over the processes of investigation and other matters.

It is very important to make the point that these were purely allegations not decided facts. They were never tested and it would be quite wrong to assume that there was any truth in them (as it would be quite wrong to assume there was none).

Compromise

The head pursued the governors, the agent and the LA. She reached compromise agreements with both the governors and the agent which meant that action on both sides ceased and allegations and defences were dropped.

The issues only became public because the authority chose to fight on the grounds that, since the governors exercised employment powers, the LA could not be held responsible for any action related to staff discipline.

Counter-intuitive though it may seem, the employment appeal tribunal decided that in law this was so. The matters complained of were connected to discipline; as discipline was a matter for the governors, they were responsible. Because the governors had already settled (compromised), it was legally impossible for the allegations to be heard.

This is both good and bad news. We do not know, and can never know, whether the allegations in this case were or were not true. However, if governing bodies become aware of the risks of compliance, they may be more likely to stand up to unofficial bullying and threats by local authorities.

Perhaps, in future, LAs and their agents will always rely on their statutory powers in open processes subject to statutory safeguards. But it does seem that if an authority and/ or its agent were to behave unofficially and unfairly, they would not have to answer for it.

While this makes it easier for heads’ representatives to lock on to their target for the claim, it does seem wrong that the morally – if not legally – guilty party should not have to answer for its guilt directly.

• Richard Bird is ASCL’s legal consultant

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