Legal help on disciplinary hearings for head teachers
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If you are headteacher and are subject to disciplinary procedure, we can help
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As the most senior employee of the school, a head teacher cannot be subject to this procedure in the same way as other members of staff. The responsibility for managing the head teacher lies with the school governing body and, whilst the principles of fairness and consistency embodied in this procedure should be equally applied to head teachers, the Chair of the governing body must take a lead role in addressing issues of capability and conduct.
Where a governing body have concerns with regard to the capability or conduct of their head teacher the Chair of the governing body will consult with the Director of Education who will appoint a senior officer of the Authority to advise and work with the governing body in implementing the procedures. In capability cases the disciplinary procedure should only be implemented after exhaustion of the informal and formal stages of the capability procedure.
USE OF SUSPENSION
Where an act of alleged gross misconduct occurs the Chair of the governing body (or their deputy in their absence) should consult the Director of Education regarding suspension from duty, while an investigation takes place. Suspension should be confirmed verbally by the Chair of the governing body. Where the alleged act involves allegations of child abuse the LEA’s Designated Officer for Child Protection should be consulted. Wherever possible a professional rep or colleague should be present when a head teacher is to be suspended.
The head teacher should be advised as to the terms of the suspension e.g., that they must be contactable during normal working hours, must not attend the workplace without prior permission and must return any keys for the workplace in their possession. They should also be advised not to communicate with colleagues, governors or anyone other than those involved in the investigation, about the suspension or matters under investigation. Any breach of the terms of the investigation may in itself constitute a disciplinary offence.
Suspension will always be on full contractual pay.
The Chair of the governing body should as soon as possible confirm the suspension in writing to the head teacher and in any event within 2 working days of the act of suspension. The letter of suspension should be marked “in confidence” and should be copied to the Director of Education’s nominated officer and Education Personnel. The letter should confirm the reason for the suspension, the terms of the suspension, the name and telephone number of a contact person for them during the suspension, that it is a neutral act and that while on suspension they will remain on full pay. A copy of the disciplinary procedure should be enclosed with the letter and they should be advised of their right to contact a trade union/professional association for advice.
A draft letter of suspension is included in these procedures at Appendix 2.
Only the Chair of the governing body, or vice Chair in the Chair’s absence, or the governing body disciplinary panel may lift the suspension. This should be confirmed in writing. This action may be taken at the recommendation of the Director of Education’s nominated officer.
In cases where information has already been gathered e.g., as part of the capability procedure, and the head teacher has already been involved in the process to date, is aware of the concerns and has had the opportunity to respond to them, there should not be a requirement to investigate the matter further. If a decision has been made to refer the matter on to the disciplinary procedure then a hearing should be convened.
In disciplinary cases the chair of the governing body must consult with the Director of Education who will appoint a senior officer from the authority, or someone from an impartial agency, to work with the governing body and fulfil the role, if necessary, of investigating officer. Where an investigation is considered necessary, the role of the investigating officer will be to collect information which will form the basis of the decision about whether there is a disciplinary case to answer and, where it is decided to take the matter to a governing body disciplinary hearing, to present the evidence at the hearing. Advice for investigating officers is included at Appendix 5.
The investigating officer should obtain and analyse information and collect evidence that is relevant to the situation. The process is one of gathering and checking information from various sources. This may include gathering documentation, letters, procedures, manuals, receipts etc and any other miscellaneous items that may be relevant i.e. damaged property, photographs, equipment etc. Statements should be obtained from any witnesses. Witness statements may be provided either in writing or verbally at an interview. If given verbally the witness should be asked to agree the notes that are taken of their verbal statement.
The head teacher should also be interviewed as part of the investigation. This interview would normally be conducted once all of the other evidence has been obtained. The head teacher should be informed in advance of the date and time of the investigation interview and informed of their right to be represented by a colleague or trade union/professional association. If during the course of the investigation new allegations come to light the head teacher should be told about them at this time.
The head teacher should be given the opportunity to present a verbal or written statement at the interview. If given verbally the head teacher should be asked to agree the notes that are taken of their verbal statement.
On completion of the investigation the investigating officer should prepare a report on their findings to the Chair of the governing body for a decision regarding any further action that should be taken. A checklist on what should be included in such a report is given in appendix 5 to this procedure. The Chair of the governing body should consult with the Director of Education’s nominated representative before deciding on any action to be taken, which may include:
Take the matter no further. Where the evidence shows that there is no case to answer or the matter is too trivial to proceed any further, the head teacher should be informed in writing that no further action will be taken and that no record will be retained on their personal file.
For head teachers that have been suspended pending investigation, the chair of governors should lift the suspension and the head teacher should be informed of this in writing and given reporting instructions for a return to duty. Other members of staff should be informed of the head teachers return to duty at this stage but care should be given to ensure that school staff are given no more information than is necessary regarding the investigation.
Arranging counselling. Minor infringements or lapses from the established standards of work performance, conduct or attendance may be dealt with informally. An informal oral warning may be given. Counselling may be appropriate to correct a situation and prevent it getting worse without using the disciplinary procedure. It can sometimes be a more satisfactory method of resolving problems than disciplinary action. It should take the form of a discussion with a member of the governing body, a senior officer from the LEA or an independent counsellor with the objective of encouraging and helping the head teacher to improve.
An informal oral warning may be given. This would not be recorded on the head teacher’s personal file but should emphasise the consequences of continued/repeated infringements or lapses.
Arranging a disciplinary hearing. This will be necessary where the chair of governors considers that the head teachers work performance or conduct warrants more formal review and/or action to be recorded on the head teachers personal file.
Where it is the chair of governors decision to either drop the matter, arrange counselling or give an informal oral warning no further action would be taken under the disciplinary procedure. Where it is decided that a disciplinary hearing should be arranged this will take the form of a governing body disciplinary hearing.
GOVERNING BODY DISCIPLINARY PANEL
Where the chair of governors considers that the head teachers work performance (having exhausted the informal and formal stages of the capability procedure), or conduct warrants more formal review the head teacher should at the earliest opportunity be instructed, in writing, to attend a disciplinary hearing which will be carried out by the governing body disciplinary panel.
In cases where a dismissal is a possible outcome the Director of Education must be informed. The Director of Education (or his/her representative) is entitled to be present at this stage and all subsequent stages.
The letter instructing the head teacher to attend such a hearing must:
give a minimum of 10 working days notice of the date, time and place fixed for the hearing (unless an earlier date has been mutually agreed);
name those who will be present at the hearing and their functions.
state the matters to be considered at the hearing together with all relevant supporting documentation and names of witnesses;
inform the head teacher that a trade union/professional association
representative or a colleague may attend and will be permitted to speak on behalf of the employee;
inform the head teacher that he/she may produce witnesses and relevant documentation at the hearing: such documentation to which he/she intends to refer should be produced not less than 3 working days before the hearing to enable due consideration to be given to it.
inform the head teacher that failure to attend, without prior notice of a valid and acceptable reason, may itself constitute a separate disciplinary offence and may lead to the hearing taking place in their absence.
enclose a copy of the disciplinary procedure.
Any documentation to which the head teacher wishes to refer at the hearing, that is produced less than three working days before hearing, will be admitted solely at the discretion of the Chair of the Disciplinary Panel.
The Chair of the governing body should arrange for a clerk to take confidential notes at the hearing. These notes should subsequently be written up and copied to the panel members, the person presenting the case for the school and the head teacher.
The hearing should as far as possible be conducted in an investigatory rather than an adversarial manner. It should be carried out in as informal a way as the governing body disciplinary panel consider to be reasonable. The objective of the hearing should be to obtain all the relevant facts so as to enable the governing body disciplinary panel to arrive at a decision which is fair to the head teacher and the school, taking account of the circumstances.
Should the governing body disciplinary panel consider it to be in the interests of justice and fairness for the hearing to be adjourned, so that for example, more information can be obtained or to enable the head teacher to confer with his/her representative, then the governing body disciplinary panel should authorise such an adjournment.
The hearing should be conducted in accordance with the outline procedure subject, however, to the overriding need to ensure a fair and just decision and the emphasis on the proceedings being as informal as possible.
PROCEDURE TO BE FOLLOWED – GOVERNING BODY PANEL
The chair of the governing body disciplinary panel will have responsibility for controlling the conduct of the hearing. The chair will make introductions at the start of the hearing and will confirm the purpose and conduct of the hearing. The hearing should be investigatory and kept informal. Its purpose is to obtain all of the facts in order to arrive at a decision.
The chair of the governing body disciplinary panel conducting the hearing should call on the person presenting the case for the school to state the facts of the matter giving rise to the hearing in the presence of the head teacher and his/her representative. Witnesses may be called if necessary.
The head teacher and/or his/her representative and the members of the governing body disciplinary panel should be given the opportunity to ask questions of the person presenting the case for the school and the witnesses. The LEA’s representative may raise points of clarification. The head teacher and his/her representative should be given an opportunity to make his/her response to the members of the governing body disciplinary panel in the presence of the school’s representative and may call witnesses to give evidence.
The school’s representative and the members of the governing body disciplinary panel should be given the opportunity to ask questions of the head teacher and/or his/her representative. The LEA representative may raise points of clarification.
Witnesses should leave the hearing after they have given their evidence. They should be advised if they will need to remain on site for possible recall or if they can be released. They must be told that the matters discussed at the hearing are confidential and should not be discussed with others.
At the conclusion of obtaining and hearing the evidence, the school’s representative followed by the head teacher and his/her representative should be given the opportunity to summarise their position.
If at any time during the proceedings the LEA representative (if in attendance) has concerns over the procedure or conduct of the hearing, they may request a short adjournment to bring this to the attention of the governing body panel. During such an adjournment all parties other than the LEA representative and the governing body panel will withdraw.
At the conclusion of the summations, the school’s representative, the head teacher and his/her representative and the clerk should withdraw.
The governing body disciplinary panel, together with the LEA representative should deliberate in private, only recalling the parties to clear points of uncertainty on evidence already given. If recall is necessary, both parties and the clerk should return, notwithstanding only one party may be concerned with the point giving rise to doubt.
The chair of the governing body disciplinary panel conducting the hearing should give the panel’s decision to the parties, specifying any subsequent action to be taken and any rights of appeal. The detail will be confirmed in writing to the head teacher as soon as possible but within 3 working days of the date of the decision, with a copy to the Director of Education.
DECISIONS THE GOVERNING BODY MAY MAKE
The courses of action which the governing body disciplinary panel may decide on are:
Take no further action. Where the evidence shows that there is no case to answer, the panel will decide that no further action is required. This decision will be confirmed to the head teacher in writing. The letter will state that no record would be retained on the head teachers personal file.
Arranging counselling/Mentoring. The panel may decide that a disciplinary sanction is not justified, and that the matter may be better dealt with by discussion with a member of the governing body, senior member of staff from the LEA or an independent counsellor. The purpose of this would be to offer advice to the head teacher regarding acceptable standards or work or conduct. The decision should state that this decision does not represent a disciplinary sanction.
A formal reprimand. Where the panel decides that the conduct of the head teacher does not meet acceptable standards the head teacher will be given a formal reprimand. The head teacher will be advised in writing of the reason for the formal reprimand, and of his/her right of appeal. The letter should state that it would remain on the head teacher’s file for a period of not less than 8 months, following which the head teacher would have the right to submit a written request for it to be removed and, if refused, at 6 monthly intervals thereafter. Notwithstanding this the governing body may decide to remove the warning at any time after the initial 8 months have passed.
A first written warning. Where the panel considers that the offence is a serious one, or where it is a further occurrence of a previous offence for which action had already been taken, a first written warning may be given. A letter should be sent to the head teacher confirming the decision and any further action/improvements that may be required, including the timescale for improvements in capability cases. It should also give a right of appeal. The letter should also state that it would remain on the head teacher’s file for a period of not less that 12 months, following which the head teacher would have the right to submit a written request for it to be removed and, if refused, at 6 monthly intervals thereafter (a draft first written warning is included at Appendix 3).
A final written warning. If there has been a failure to improve, and conduct or performance is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning, but insufficiently serious to justify dismissal (in effect both first and final written warning), a final written warning will normally be given to the head teacher. This should give details of the complaint and improvements that are required, including any support that is to be provided and retraining to be undertaken where necessary. It should also state that dismissal may result if there is no satisfactory improvement and advise of the right of appeal (a draft final written warning is included at Appendix 4).
Dismissal and summary dismissal. Except for gross misconduct, dismissal will not usually be appropriate for a first breach of discipline and should not normally apply unless a final written warning has been given. If matters remain unsatisfactory in capability cases and the head teacher fails to reach the prescribed standards following a final written warning, dismissal will normally result. However in extreme capability cases, where the education of pupils is jeopardised, dismissal with notice may result following a formal hearing under the capability procedure. The decision should be confirmed in writing giving reasons for the dismissal, the date on which the employment will terminate and advise the right of appeal. Summary dismissal without notice is appropriate only in cases of gross misconduct, i.e. an act or acts of misconduct so serious that the basis of trust between employer and employee, implicit in any contract of employment, is destroyed and the continued presence of the head teacher at the school can no longer be allowed.
In cases of dismissal for misconduct involving criminal offences, behaviour which involves an abuse of a head teacher’s position of trust or a breach of the standards of propriety expected of teachers, the LEA is required to report the details to DfES who will consider whether to bar the head teacher from work with children and young persons (DfES Circular 11/95 refers).
A head teacher has the right of appeal against any disciplinary sanction imposed by the governing body panel. The intention to appeal along with the grounds or basis for appeal should be notified to the Chair of the governing body within 5 working days of receiving the letter outlining the governing body disciplinary panel’s decision. Where notification of the intention to appeal is received late the Governing Body Appeals Panel will consider whether or not to allow it. The Chair of governors should immediately acknowledge receipt in writing to the head teacher and notify the Director of Education.
All appeals against disciplinary action should be to the governing body appeals panel.
Upon receipt of a written request from the head teacher, the governing body should consider deleting from the head teacher’s personal file the record of any disciplinary hearing provided that it is not less than 8 months after the disciplinary hearing for a formal reprimand, or 12 months after the disciplinary hearing for a first or final written warning. A request to remove the record should not be unreasonably refused but, if refused the reason for refusal should be given. The request may be repeated at not less than 6 monthly intervals thereafter. Nothing in this paragraph shall prevent the governing body from deleting such a record at any time. When it is decided to delete a disciplinary record, the Director of Education must be notified immediately in order to take appropriate action and the head teacher informed in writing.
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For more information or free legal advice telephone 020-7381-8111 or email [email protected]
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