Revised guidance for governing bodies Guidance Welsh Assembly Government Circular Date of issue:
procedures for school staff Audience Overview Action required Further information Additional copies Governing bodies of maintained schools in Wales; local authorities (LAs), school staff unions and diocesan authorities. This document offers revised guidance to schools, governing bodies, LAs and school staff unions on the management of the conduct and discipline of staff at the school, including allegations involving issues of child protection. It includes a model procedure in Annex I which it is recommended that governing bodies adopt. All governing bodies must have regard to this guidance when reviewing and implementing their staff disciplinary procedures. Local authorities, governing bodies and headteachers must have regard to this guidance in relation to schools agreed staff disciplinary dismissal procedures. Governing bodies should seek advice about staff disciplinary matters from their local authority governor support officer. Advice may also be obtained from Governors Wales helpline (tel: 0845 6020100; e-mail: helpline@governorswales.org.uk). Enquiries about this guidance should be sent to: Schools Management and Effectiveness Division Department for Children, Education, Lifelong Learning and Skills Welsh Assembly Government Cathays Park Cardiff CF10 3NQ Tel: 02920 826051 e-mail: SMED2@wales.gsi.gov.uk This document can be accessed from the Welsh Assembly Government website at www.wales.gov.uk/educationandskills Status of This circular guidance replaces Staff Disciplinary Procedures document in Schools National Assembly for Wales Circular No: 45/2004 and three letters about independent investigation of allegations of a child protection nature as noted below: (i) investigation of child protection allegations against school staff (9 November 2006) (ii) appointment of an independent investigator by school governing bodies for school staff disciplinary proceedings involving child protection allegations (30 March 2007) (iii) investigation of child protection allegations against school staff by independent investigators (30 August 2007). Ref: CAD/GM/0171 ISBN: 978 0 7504 6124 5 WAG10-11663 Crown copyright 2011
Contents Section 1: Introduction 4 Section 2: The legal framework 8 Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations 2006 Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations 2006 School staff employed by the LA School staff employed by an agency Section 3: Training on staff disciplinary procedures 13 Section 4: Fair procedures and impartiality 15 Fair penalties Section 5: The staff disciplinary and dismissal and staff disciplinary and dismissal appeals committees 18 Review of membership and remit of the committees Section 6: Role of the chair of governors 20 Section 7: Lesser misconduct 21 First stage informal procedure investigation Hearing with the headteacher or chair of governors (in respect of the headteacher) Informal action or notice to improve Second stage formal action Warning periods Appeals against formal action Allegations of lesser misconduct against the headteacher Consideration under procedures for gross misconduct Section 8: Gross misconduct 27 Involvement of the governing body Allegations of gross misconduct against the headteacher Allegations of criminal behaviour to be referred to the police Investigation by the police Action by the governing body 1
Section 9: Stages of the procedure for considering allegations of gross misconduct 31 Receipt of allegation of gross misconduct The investigation Conduct of the investigation Interviewing the member of staff Interviewing witnesses Record of interviews Outcome of investigation for allegations other than child protection Section 10: Procedures for handling child protection allegations 37 Receipt of allegation Referral to the statutory authorities Referral for independent investigation Appointment of an independent investigator for child protection allegations against school staff The role of the investigator Sharing of information The investigation Appointment of independent non-governor member on staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee If the allegation is withdrawn Anonymous allegations Malicious/false allegations Section 11: Disciplinary hearing 46 Provision of written documents Attendance and advice of chief education officer and diocesan representative Attendance and advice of headteacher Role of the presenting officer Role of the committee chair Role of committee members Role of the companion or union representative Role of the clerk to the committee Hearing procedure Decision reached after the hearing has taken place Disciplinary hearing appeal Absence due to illness Resignation of a member of staff Review 2
Section 12: Suspension 55 Use of suspension Suspension interview Section 13: General issues 58 Governing body access to information Governing body access to independent advice Written records of proceedings (including records of governing body meetings) Annex A: Matters outside the scope of the staff disciplinary procedures 62 Annex B1: Examples of lesser misconduct behaviour 65 Annex B2: Examples of gross misconduct behaviour 66 Annex C: Guidance and other documents relevant to staff disciplinary procedures 68 Annex D: Supply of information 72 Annex E: Flow chart for lesser misconduct and gross misconduct 74 Annex F: Suggested timescales for hearings (in working days) 76 Annex G: Checklist for disciplinary hearings 79 Annex H: Independent Investigation Service 80 Annex I: Model staff disciplinary procedure for maintained schools 81 3
Section 1: Introduction 1.1 This document provides advice and guidance on a range of issues that form part of the school staff disciplinary/dismissal process, including: the legal framework the constitution, membership and establishment of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee procedures for dealing with lesser and gross misconduct allegations and behaviour procedures for dealing with allegations that involve issues of child protection including independent investigation investigation of allegations use of suspension conduct of disciplinary/dismissal proceedings the appeal process if required governing body action when a staff member resigns governing body access to information and independent advice governing body training notification under the Education (Supply of Information) (Wales) Regulations 2009 for all staff dismissals a model staff disciplinary procedure in Annex I. 1.2 The Acas Code of Practice 1 Disciplinary and grievance procedures 1 points out that disciplinary procedures are necessary for promoting orderly employment relations and achieving fairness and consistency in the treatment of individuals and to minimise disagreements about disciplinary matters. The Acas Code encourages the agreement of disciplinary procedures between employers and employee representatives, so that they become part of contracts of employment. 4 1 www.acas.org.uk/index.aspx?articleid=2179
1.3 The following matters may still need to be delegated to a staff disciplinary and dismissal committee if the matter will result in dismissal. Nevertheless, they are outside the scope of this guidance. a) Where employment is terminated: (i) because of redundancy (ii) because a temporary or fixed-term contract ends 2. b) Where any deficiencies in performance on the part of the staff member arise from a lack of aptitude or skill, the capability procedure should be used. c) Staff grievances, unless action under the staff grievance procedure results in the need for disciplinary action also. d) Termination during or at the end of a probationary period, whether or not extended beyond its originally specified duration 3. Refer to Annex A for further information about matters outside the scope of this guidance. 1.4 A school governing body is required to adopt procedures to regulate the conduct and discipline of all staff at the school which includes teachers, support staff such as teaching assistants, office staff, caretakers, laboratory technicians and learning support assistants, and any other member of staff who is paid from the school s delegated budget. However, this does not include agency staff, staff employed by a private contractor, staff whose contract of employment is held by another body, and local authority school meals staff. These are outside the scope of these procedures. The governing body is required to establish two committees, namely a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee. 2 The Government of Maintained Schools (Wales) Regulations 2005 regulation 55(1)(i) states that a decision to terminate the employment of any person employed by the local authority to work at the must be delegated to the staff disciplinary and dismissal committee. 3 The Government of Maintained Schools (Wales) Regulations 2005 regulation 55(1)(ii) states at a foundation, voluntary aided or foundation special school, the initial decision that a person employed to work at the school should have his or her contract of employment with the governing body terminated or should not have his or her contract renewed (except where the dismissal is pursuant to a direction of local education authority under section 55(5) of the 1998 Act. This function must be delegated to a committee known as the staff disciplinary and dismissal committee. 5
1.5 The purpose of this guidance is to provide advice to governing bodies and headteachers on handling staff disciplinary matters in relation to conduct issues. This guidance also includes a model staff disciplinary and dismissal procedure at Annex I. It is not possible to address every eventuality which may arise and this guidance is not a substitute for legal or other advice relevant to individual circumstances. In accordance with sections 35 and 36 of the Education Act 2002, governing bodies must have regard to this guidance and the model staff disciplinary and dismissal procedure. 6 1.6 The Welsh Assembly Government therefore expects all LAs and schools to review, in consultation with the recognised trade union representatives, their agreed disciplinary/dismissal policy and procedure against the guidance in this document on receipt of this guidance. In the event of a challenge to any part of the disciplinary process, a governing body will need to be able to demonstrate that it has had regard to this guidance and has either followed it and adopted the model procedure or amended their own staff procedure to take account of this guidance, or has a sound justification for not doing so. It is also recommended that the governing body also have regard to the Acas Code of Practice 1 Disciplinary and grievance procedures. 1.7 The Welsh Assembly Government acknowledges that all LAs have model disciplinary procedures in place and recognises that there are differences between them. This guidance and model procedure will provide a consistent and coherent approach to staff disciplinary issues in schools across Wales. If a governing body chooses to follow policies or procedures provided by another party such as the local authority or a diocesan authority, it must formally adopt such procedures as its own. This decision must be recorded in the minutes of the governing body. The governing body should also be able to demonstrate that it has had regard to this guidance even if it does not adopt the model procedure in Annex I. 1.8 Once the governing body has agreed to formally adopt a staff disciplinary/dismissal procedure, it becomes the governing body s responsibility to ensure compliance with the procedure and with statutory regulations in Wales. Governing bodies should therefore carefully consider the contents of such a procedure to ensure that it is suitable to meet the needs of the school, before formally adopting it. Consultation on any alternative procedure must take place, in good time, prior to formal adoption, with relevant parties and recognised trade unions.
1.9 As a matter of good practice governing bodies should regularly review their policies and procedures. The trade unions recognised by the LA and the governing body must be consulted in good time on any proposed changes to existing staff disciplinary procedures or guidance. 1.10 The principles of natural justice and the requirements of employment mean that the disciplinary procedures the governing body has adopted must be made known to all staff and must be clear and detailed. This is to ensure that all parties know what the arrangements are and to reduce the risk of bias or unfairness. 7
Section 2: The legal framework 2.1 The main legal provisions relating to staffing, disciplinary and conduct matters are contained in: the Employment Rights Act 1996 the Employment Relations Act 1999 sections 35 37 of the Education Act 2002 the Staffing of Maintained Schools (Wales) Regulations 2006 4 (referred to as the 2006 staffing regulations in this document) the Staffing of Maintained Schools (Miscellaneous Amendments) (Wales) Regulations 2007 5 ; (referred to the 2007 staffing amendment regulations ) the Government of Maintained Schools (Wales) Regulations 2005 6 (referred to as the 2005 school government regulations ). 2.2 The 2005 school government regulations require governing bodies to establish a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee. The function of the staff disciplinary and dismissal committee is to determine whether a person should cease to work at the school or have their contract of employment terminated or not renewed, and to hear representations in relation to that. The function of the staff disciplinary and dismissal appeals committee is to hear appeals in respect of such decisions. Both committees must be clerked in accordance with the school government regulations. Wherever possible, the clerk to the governing body should clerk the disciplinary and dismissal committees unless, due to the sensitive nature of disciplinary proceedings, the governing body wish to appoint a clerk who is not a member of staff at the school. Whoever is clerk should be discrete, competent and trained. Further information on the role of the clerk can be found in Section 11, paragraphs 11.12 11.13. Given that disciplinary proceedings do not always result in dismissal, the two statutory committees operate respectively as a staff disciplinary and dismissal committee and a disciplinary and dismissal appeals committee, and are referred to in this guidance by those titles 7. 8 4 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm 5 www.opsi.gov.uk/legislation/wales/wsi2007/wsi_20070944_en_1 6 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm 7 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55)
2.3 In accordance with the 2006 staffing regulations and the 2007 amending staffing regulations, governing bodies are responsible for the conduct and discipline of school staff. Regulation 7 of the 2006 staffing regulations states that the regulation of conduct and discipline in the school is the responsibility of the governing body. Sections 35(7) and 36(7) of the Education Act 2002 state that if a school does not have a delegated budget then staff disciplinary/dismissal issues are the responsibility of the LA who are also required to have a procedure in place for dealing with staff disciplinary/dismissal matters. 2.4 The governing body must also delegate responsibility for considering appeals against decisions of the staff disciplinary and dismissal committee to a separate disciplinary and dismissal appeals committee 8. The disciplinary and dismissal appeals committee will also hear appeals against decisions made by the headteacher in lesser misconduct cases. 2.5 Each committee must be made up of at least three governors. The disciplinary and dismissal appeals committee cannot have fewer governors than the staff disciplinary and dismissal committee. The same persons must not be members of both committees. Further information on tainting can be found in Section 5 (paragraphs 5.3 5.7) and Section 13 (paragraphs 13.1 13.4). 2.6 The headteacher cannot be a member of any committee or appeals committee dealing with staff disciplinary or dismissal matters, although the headteacher can attend meetings and disciplinary hearings to give advice, present the case against the member of staff or give evidence. The headteacher cannot attend any meetings or hearings if the subject of the allegation or a witness 9. 2.7 For allegations that involve issues of child protection against a member of the school staff which may lead to disciplinary proceedings, the 2006 staffing regulations introduced two additional requirements for governing bodies: the governing body must appoint an independent investigator the membership of the staff disciplinary and dismissal committee and the disciplinary and dismissal appeals committee must include at least two governors and an independent non-governor member with voting rights. The membership of the committees must not overlap. Further information on handling child protection allegations can be found in Section 10. 8 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55(2)) 9 An associate pupil governor may not attend any meetings or hearings of either committee. 9
2.8 In exceptional circumstances, for gross misconduct matters that do not involve child protection issues, independent non-governors may be members of either committee but they cannot vote in any of the proceedings 10. Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations 2006 2.9 The LA is the employer of staff in community, community special, voluntary controlled and maintained nursery schools, but governing bodies of these schools are also to be treated as the employer of staff in respect of certain employment functions where the school has a delegated budget 11. In addition, if there is a claim for unfair dismissal the governing body will be the respondent and not the LA. 2.10 Where schools have a delegated budget both the governing body and the headteacher have the power to suspend staff, but only the governing body can end a suspension 12. If the governing body ends a suspension it must immediately inform the LA. Where the governing body has determined that a member of staff employed to work at the school should cease to work there, they must notify the LA in writing of its decision and the reasons for it. The governing body must give the member of staff the opportunity of appealing against their decision to dismiss them before notifying the LA of its decision. If the member of staff concerned works solely at the school and does not resign or appeal the LA must, within 14 days of receiving notification from the school, give that person notice terminating their contract of employment as required under the contract, or terminate the contract without notice if the circumstances of the members of staff s conduct make it appropriate to do so. If the member of staff is not employed solely to work at the school, the LA must require the member of staff to cease to work at the school. 10 10 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 54(7) and 54(8)). 11 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Part 2). 12 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 16) and Section 12 (concerning suspension) of this guidance.
2.11 For schools that do not have a delegated budget the LA is responsible for suspension, staff discipline and dismissal in accordance with Part 1 of Schedule 2 to the Education Act 2002. This means that the 2006 staffing regulations, which establishes a framework for staffing matters, and the 2007 staffing amendment regulations do not apply to staff at these schools. This includes the requirements for an independent investigator and a non-governor member of the staff disciplinary and dismissal committee with voting rights, to be appointed for child protection allegations considered to be gross misconduct. Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations 2006 2.12 The governing body is the employer of most staff in foundation and voluntary aided schools, and is therefore responsible for the conduct and discipline of the staff employed to work at the school. Regulations 28 31 of the 2006 staffing regulations sets out the framework for suspension and staff disciplinary and dismissal arrangements at such schools. Governing bodies of these schools are also required to appoint an independent investigator and a non-governor member (who has voting rights) to the staff disciplinary and dismissal committee and the disciplinary and dismissal appeals committee, for all allegations that involve issues of child protection. These must be different persons. 2.13 In accordance with the 2006 staffing regulations, the governing body must also establish disciplinary rules and procedures and make these known to members of staff. Both the governing body and the headteacher have the power to suspend any person employed to work at the school (whether or not he or she is employed by the governing body) but only the governing body can end a suspension 13. 13 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 28) and Section 12 on Suspension in this guidance. 11
School staff employed by the LA 2.14 Where the LA directly employs staff to work at a school, such as school meals staff or agency staff, the LA is responsible for the discipline, suspension and dismissal of such staff 14. Before exercising any of these functions, the authority must consult the governing body of the school at which the member of staff concerned works to such extent as the authority thinks fit. 2.15 If a gross misconduct allegation is made against one of these members of staff, the following should happen: the matter should be reported to the LA the headteacher should consider whether the member of staff should leave the school premises the LA should be informed that the individual is no longer required to work in the school. The school will need to provide the LA with their reasons for taking this decision the LA must inform the governing body of the school at which the member of staff works before carrying out any suspension or disciplinary/dismissal action. School staff employed by an agency 2.16 Where an agency directly employs staff to work at a school, the process to be followed is indicated in paragraphs 2.14 2.15 above. 12 14 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 18).
Section 3: Training on staff disciplinary procedures 3.1 Disciplinary matters must be handled in accordance with the law and the principles of natural justice. Cases can be extremely complex. Governors who are members of the staff disciplinary/dismissal and disciplinary and dismissal appeals committees can feel very vulnerable when dealing with staff disciplinary matters, especially where the outcome may possibly result in a member of staff being dismissed. 3.2 All governors should undertake timely and relevant training on staff disciplinary matters. Governors who are members of the staff disciplinary/dismissal and disciplinary and dismissal appeals committee should also receive refresher training in more detail, when they have been made aware that they will have to deal with a disciplinary matter. Clerks to governing bodies, headteachers and staff should be included in this training. 3.3 By law, LAs are required to provide training for governors free of charge on a range of issues which will help them discharge their functions and responsibilities effectively, but only so far as it seems fit. It is very likely therefore that your LA will already have a training programme in place covering staff disciplinary issues. Governors should contact their LA for details. 3.4 Training for governors, clerks, headteachers and staff should cover: relevant legislation, i.e. employment and education legislation, Acas Code of Practice 1 Disciplinary and grievance procedures, equal opportunities legislation, DDA requirements, data protection, Freedom of Information requests and case law essential features and principles of effective and fair governing body procedures how to carry out an investigation conduct of a disciplinary interview or hearing skills and techniques for questioning confidentiality impartiality child protection matters whistleblowing 13
record keeping notification to the Independent Safeguarding Authority and the General Teaching Council for Wales where appropriate. 3.5 Governing bodies should ensure that members of disciplinary/dismissal or disciplinary and dismissal appeals committees who have not been trained, receive timely training. Waiting until a disciplinary case arises is too late and may cause unnecessary delays in the disciplinary process. 14
Section 4: Fair procedures and impartiality 4.1 The governing body must reach decisions in a procedurally fair way. A person against whom allegations are made has the right to a fair hearing. Accordingly the headteacher, chair of governors and governing body must follow the procedures they have adopted. Under any procedures the initial letter informing the member of staff that disciplinary action is to be taken should: inform them of the allegations against them at the earliest opportunity, and provide any supporting evidence state the possible sanctions that could apply if the allegation is upheld state the member of staff s rights under the terms of the school s staff disciplinary procedure, including the right to representation provide opportunity for the member of staff to obtain their own advice and representation to enable them to prepare their response to the allegations and for any disciplinary hearing include details of membership of the staff disciplinary/dismissal and disciplinary and dismissal appeals committees and afford opportunity to object to any member of either committee on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case noting the reasons why. 4.2 Members of the committees must be impartial and independent from external pressures or influence and must address the issues impartially and independently giving due proper and equal consideration to the representations from all parties 15. Under regulation 63(2) of the school government regulations 16 a governor must declare any interests they may have and withdraw from the meeting without voting if there is a conflict of interest or reasonable doubts about their ability to act impartially, or if they have a pecuniary interest. Where there is dispute about these matters the other governors present at the committee must vote to decide the issue (regulation 63(5) applies). 4.3 No governor must take part in deciding appeals against their own decisions. Accordingly, regulation 55(6) of the 2005 school government regulations 17 prohibits members of the staff disciplinary and dismissal committee from taking part in the proceedings of the disciplinary and dismissal appeals committee. 15 The Seven Nolan Principles of public life. www.archive.official-documents.co.uk/document/parlment/nolan/seven.htm 16 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 63(2)). 17 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55(6)). 15
4.4 Cases should only be discussed by members of the staff disciplinary/dismissal and disciplinary and dismissal appeals committees as part of the proceedings of those committees. When the chair reports progress on a staff disciplinary matter to the governing body, the report could generate questions from governors and subsequent discussion. Should this happen the chair should stop the discussion immediately. Members of the governing body must at all times treat all information they receive relating to allegations against members of staff with the utmost confidentiality. 4.5 Other governors who have knowledge of the evidence or potential evidence must not discuss the case with fellow governors. If any of the members of the staff disciplinary and dismissal committee or the disciplinary and dismissal appeals committee were involved in such a discussion, they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance, and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal being upheld by an Employment Tribunal. 4.6 In addition to the statutory requirements on governing bodies outlined above, the whole disciplinary process must seem to be fair, reasonable and give expression to the principles of natural justice, to ensure that the staff disciplinary and dismissal committee s consideration and final assessment of the facts is considered, reasonable and justified. A fair process also helps to safeguard the member of staff in what will invariably be a stressful time for the person concerned. 4.7 The principles of natural justice demand that decisions should be taken in an impartial and balanced way after taking into account all available information, including representations from the member of staff and their union representative, witnesses and witness statement(s) and the person presenting the case against the member of staff (refer to Section 5 paragraphs 5.3 5.7 and Section 13 paragraphs 13.1 13.4 for additional information on tainting). 16 Fair penalties 4.8 It is recommended that governors and headteachers consider Discipline and grievances at work: The ACAS guide. For ease of reference the text from pages 27 28 follows.
When deciding whether a disciplinary penalty is appropriate and what form it should take, consideration should be given to: whether the rules of the organisation indicate what the likely penalty will be as a result of the particular misconduct the penalty imposed in similar cases in the past whether standards of other employees are acceptable, and that this employee is not being unfairly singled out the employee s disciplinary record (including current warnings), general work record, work experience, position and length of service any special circumstances which might make it appropriate to adjust the severity of the penalty whether the proposed penalty is reasonable in view of all the circumstances whether any training, additional support or adjustments to the work are necessary. It should be clear what the normal organisational practice is for dealing with the kind of misconduct or unsatisfactory performance under consideration. This does not mean that similar offences will always call for the same disciplinary action: each case must be looked at on its own merits and any relevant circumstances taken into account. Such relevant circumstances may include health or domestic problems, provocation, justifiable ignorance of the rule or standard involved or inconsistent treatment in the past. 17
18 Section 5: The staff disciplinary and dismissal and disciplinary and dismissal appeals committees Review of membership and remit of the committees 5.1 Governing bodies should establish and review the membership of their committees at least annually. It is good practice for this to be done at the first governing body meeting of the school year. The names of the governors identified to be members of both committees should be recorded in the governing body minutes. Membership of these committees also needs to be checked at the start of each case so that any governor who is tainted is replaced. Examples of where a governor may be tainted include where the governor: is the subject of the allegation(s) under consideration is related to the member of staff against whom an allegation of misconduct has been made or has a close relationship with any of the parties involved has a pecuniary interest has demonstrated that they cannot fulfil their role impartially, e.g. has been a member of the disciplinary and dismissal committee that heard the original complaint which is now the subject of an appeal, or has indicated that they have predetermined the matter is a person who instigates the allegation. 5.2 If the member of staff facing disciplinary action or their union representative can demonstrate that there are reasonable doubts about the impartiality of a member of either committee, the governing body should replace the governor, unless there are other overriding considerations. Refer to Section 13 (paragraphs 13.1 13.4) for more information. 5.3 Knowledge that an allegation has been made and knowledge of the nature of that allegation does not affect impartiality provided a governor does not hear or read any of the evidence other than as part of the hearing arrangements. The governing body and individual governors must take great care not to discuss a disciplinary case. Cases should only be discussed by members of the staff disciplinary/ dismissal and disciplinary/dismissal appeal committees as part of the proceedings of those committees. Other governors who have knowledge of the evidence or potential evidence must take care not to discuss the case with fellow governors. If any of the members of the staff disciplinary/dismissal committee or the staff disciplinary and dismissal appeals committees were involved in such a discussion,
they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal by a dismissed member of staff being upheld by an Employment Tribunal. 5.4 Where other governors have to be identified to replace any of those initially agreed by the governing body, this decision must be taken by the whole governing body. This could result in the governing body being called together quickly, using the emergency procedures, in order to avoid delays in the disciplinary process. The 2005 school government regulations do not permit the selection of these governors to be delegated to an individual, i.e. the chair or the headteacher, or to a committee. 5.5 There are alternative arrangements that governing bodies may wish to consider putting in place to cater for such an eventuality. Governing bodies could identify reserve governor members, in a priority order, at the time the committees are set up to cater for such an eventuality, i.e. conflicts of interests, illness and holiday commitments. This would allow the chair or clerk to contact replacement governors in a priority order. Alternatively, the governing body could decide that if any member of the staff disciplinary and dismissal committee is tainted and unable to act, the governors identified to be the disciplinary and dismissal appeals committee should take over the role of the staff disciplinary and dismissal committee (provided they are not tainted). This could provide sufficient time for the governing body to identify governors for the appeals committee. 5.6 Governing bodies must make alternative arrangements clear as part of the school s agreed staff disciplinary procedure. Where these alternative arrangements have to be implemented all parties should be immediately informed and given the reasons. 5.7 The opportunity can be taken when reviewing the membership of the committees to review and confirm or amend the disciplinary procedures adopted by the governing body. If the governing body considers that the disciplinary procedure requires amendment it must consult the relevant trade unions, the LA and, if appropriate, the diocesan authority in good time before making any amendments. (Refer to Section 1 for further information.) 19
Section 6: Role of the chair of governors 6.1 The chair of governors should not normally sit on either the disciplinary and dismissal committee or the disciplinary and dismissal appeals committee, as it is possible that they could have prior knowledge which could lead them to form a judgement on the case. For example it would be usual for a headteacher to inform the chair of governors that a gross misconduct allegation had been made against a member of staff and that the governing body s staff disciplinary and dismissal committee would need to meet. This may well generate a discussion between the headteacher and the chair of governors which could taint the chair. 6.2 If the governing body decides that the chair should be a member of the staff disciplinary and dismissal committee or the disciplinary and dismissal appeals committee (because of their expertise, etc.) this should be clearly written in the staff disciplinary procedure, and another governor (not involved in either committee) must be nominated to act as chair in respect of that allegation. This role is usually undertaken by the vice chair. 6.3 The chair of governors, with the headteacher, would receive the report from the investigators in gross misconduct cases and decide on the action to take in respect of allegations against a member of staff. If the allegation is against the headteacher, the chair of governors and another governor will receive the investigator s report and decide on the course of action to take. For any gross misconduct and child protection cases, if the headteacher and the chair of governors (or the chair of governors and another governor in respect of allegations against the headteacher) cannot agree on receipt of the investigating report then it goes to disciplinary and dismissal committee hearing. 20
Section 7: Lesser misconduct 7.1 A school s disciplinary procedure will usually identify the responsibility for disciplinary matters where the alleged misconduct could constitute lesser misconduct to the headteacher (where the outcome following investigation could be the issuing of a warning rather than dismissal). The governing body s disciplinary procedure needs to contain appropriate delegation arrangements. Paragraph 7.26 includes advice about dealing with lesser misconduct allegations made against the headteacher. 7.2 Annex B1 includes a list of suggested behaviours that are considered to be lesser misconduct. This is not an exhaustive list and is provided for illustrative purposes only. 7.3 Annex F provides suggested timescales in relation to lesser misconduct matters. 7.4 There will be occasions when it is appropriate for a member of staff s conduct to be discussed with that member of staff as part of normal supervisory arrangements and without recourse to the formal procedures. In these circumstances the member of staff will be given guidance and support from their line manager. 7.5 The member of staff should be informed that if the discussions fail to produce the necessary improvement the formal procedure may have to be invoked (refer to paragraphs 7.12 7.21 for further information. First stage informal procedure investigation 7.6 An investigation will take place and should be undertaken by someone other than the person who may be required to take informal action/formal action. This may be a member of the senior management team or another independent person (as appropriate). The extent of the investigation will depend on the seriousness of the allegation. The investigation will include gathering evidence such as receipt of documentation, interviewing witnesses (as appropriate) and producing a report. The investigation must look for evidence both for and against the allegation made. Contact details of an LA adviser should be given to the person carrying out the investigation. Further information on the investigation process can be found in Section 9 paragraphs 9.6 9.14. An investigation will not necessarily result in disciplinary action, and this should be made clear to all parties. 21
7.7 The member of staff should be informed in writing of the following information in advance of the meeting to discuss the allegation (providing the release of this information does not compromise or place a member of staff or pupils in a difficult situation). The member of staff and their representative should have adequate time to prepare for it: the date, time and purpose of the meeting the nature of the allegation(s) together with any supporting documents the right to be accompanied by a companion 18, or a representative of the member of staff s trade union. 7.8 At the meeting, the member of staff must have the opportunity to answer allegations made, and present their evidence before any decision is reached. A contemporaneous record should be made of the meeting. A copy of the record should be provided to the member of staff for amendment and/or agreement. 7.9 Once the investigation has been concluded, the investigating officer will present the findings to the headteacher (or the chair of governors in respect of the headteacher). This should be done as soon as practicable after the conclusion of the investigation. The headteacher or chair of governors may conclude that: no further action will be taken matters can be dealt with under the informal procedure (refer to paragraphs 7.4 7.5 for further information) there appears to be sufficient information for a formal disciplinary hearing with the headteacher to be conducted there appears to be sufficient information for a formal disciplinary hearing with the staff disciplinary and dismissal committee to be conducted. 7.10 Where dismissal could result because a member of staff is currently on a final written warning, the case must be referred to the staff disciplinary and dismissal committee. 22 18 A companion may be a fellow worker, a trade union representative or an official employed by a trade union see Code of Practice 1 Disciplinary and grievance procedures (Acas, 2009). Relevant case law applies: G v. the Governors of X School and Kulkarni v. Milton Keynes Hospital NHS Foundation Trust.
Hearing with the headteacher or chair of governors (in respect of the headteacher) 7.11 A hearing will take place with the headteacher (or the chair of governors or another independent person, as appropriate, in respect of the headteacher). The member of staff should be informed in writing of the following information (providing the release of this information does not compromise or place a member of staff or a pupil in a difficult situation): the date and time of the hearing the nature of the allegation(s) together with any supporting documents the names of any witnesses to be called if appropriate the right to be accompanied by a companion 19, or a representative of the member of staff s trade union the possible outcome of the hearing. The member of staff should have adequate time to prepare for it, as should their representative. Informal action or notice to improve 7.12 Following the hearing, the headteacher (or chair of governors in respect of the headteacher) will determine whether matters can be dealt with by giving advice, coaching or issuing an informal warning as appropriate. However, this may be delegated to a member of the senior management team. 7.13 Such advice, instruction or managerial strategies are not part of formal disciplinary procedures. Line managers need to ensure that problems are discussed in order to encourage and help members of staff to improve. The member of staff needs to understand what they need to do in relation to their conduct in question; how conduct will be monitored and reviewed and over what period; and that formal action might be taken if there is a recurrence of the conduct in question. The school should be careful so that informal action does not turn into formal disciplinary action, as this may unintentionally deny the employee certain rights such as the right to be accompanied. 19 A companion may be a fellow worker, a trade union representative or an official employed by a trade union see Code of Practice 1 Disciplinary and grievance procedures (Acas, 2009). Relevant case law applies: G v. the Governors of X School and Kulkarni v. Milton Keynes Hospital NHS Foundation Trust. 23
Second stage formal action 7.14 Where the headteacher (or chair of governors in respect of the headteacher) considers that the behaviour of the member of staff justifies more formal action, or the member of staff has failed to respond to informal action, or the outcome of the hearing has concluded that an allegation should be considered as lesser misconduct, allegations can usually be dealt with by means of a formal warning 20. 7.15 The decision should be given to the member of staff in writing after the hearing. The warning must be for a fixed period of time that is expressly stated in the warning itself. Where specific improvements are required these need to be detailed. A report of the warning should be placed on the member of staff s personal file and the member of staff given a copy. A copy must also be provided to the chief education officer of the LA that maintains the school. The member of staff s acknowledgement of the warning and any observations on it should also form part of the record. The right to appeal and the procedure for appeal should be detailed in the outcome letter. If the warning notice is not a final warning, the employee should be told that a final warning may be considered if the misconduct continues. 7.16 In the event of a further allegation or allegation of a more serious nature, consideration may need to be given to a formal written warning or a final written warning. Such warnings are given in the form of a letter to the member of staff with a copy placed on the member of staff s personal file. A copy of the letter is also provided to the chief education officer for staff employed in community, community special and voluntary controlled schools. The member of staff s acknowledgement of the warning, together with any written observations on it, should also be added to the member of staff s personal file. 7.17 A warning is described as a final warning when it is made clear to the member of staff that failure to address the behaviour in question will lead to further consideration of the matter under the governing body s procedure. 24 20 A warning that will be placed on the worker s record see page 26 of Discipline and grievance at work: The ACAS guide at www.acas.org.uk/index.aspx?articleid=2179
7.18 The procedure needs to provide that where a formal warning is given the member of staff should be informed of. the action needed on their part to avoid any further disciplinary sanction the consequences of any failure to take necessary action their right of appeal against a warning. Warning periods 7.19 Warnings should be expunged from the staff member s file after a specified period. Suitable periods would be: oral warning 3 months first written warning 6 months final written warning 12 months. 7.20 It is important however, to note that the duration of the warning can vary according to the nature of the offence and the nature of the required improvement. 7.21 Expunged warnings should be disregarded in any future disciplinary proceedings. Appeals against formal action 7.22 The disciplinary procedures adopted by the school should provide for a member of staff to appeal against a formal warning. The disciplinary and dismissal appeals committee would hear any appeal. The procedure should set a time limit for notification by the member of staff to the clerk to the disciplinary and dismissal appeals committee of the intention to, and reasons for, appeal. The reasons for the appeal would have to be given at this stage. 7.23 The disciplinary and dismissal appeals committee should hear the appeal. The member of staff should be informed in writing of the date and time of the appeal in advance (refer to Annex F for suggested timescales to follow. 7.24 There may need to be flexibility with timescales where there is a large amount of paperwork involved, subject to mutual agreement. 25
7.25 The procedure to be followed should be the same as that set out in Section 11 paragraphs 11.22 11.26 in relation to cases considered by the disciplinary and dismissal appeals committee. The disciplinary and dismissal appeals committee cannot impose a more severe penalty than that imposed by the headteacher. Allegations of lesser misconduct against the headteacher 7.26 If an allegation amounting to lesser misconduct is made against the headteacher, the school s procedures need to provide for the matter to be brought to the attention of the chair of governors. The chair would need to act in accordance with the arrangements set out in the school s staff disciplinary procedure as informed by the guidance in paragraphs 7.4 7.21. The chair of governors should, where possible, arrange for any investigation to be carried out externally, i.e. by the LA, diocesan authority or an independent person. While a person appointed under these circumstances would be independent, they would not be an independent investigator appointed within the terms of the Welsh Assembly Government s Independent Investigation Service (WAGIIS) for child protection allegations. Consideration under procedures for gross misconduct 7.27 If at the end of an investigation the headteacher or other senior manager concludes that disciplinary action for gross misconduct may be justified, they should inform the member of staff at the end of the meeting and confirm in writing that the matter is being referred to the governing body staff disciplinary and dismissal committee for their consideration. 26