Staffing guidance under sections 35(8) and 36(8) of
the Education Act 2002
Contents
Section
page
Preamble
2
Summary of changes
3
1
Delegation to head teacher of staff
appointments and dismissals
4
2
Appointment of a head teacher and deputy
head teacher
6
3
LEA representations about head teacher
appointments
11
4
LEA and diocesan authority attendance and
advisory rights in connection with teacher
appointments and dismissals
14
5
Appointment of staff other than head teachers 16
and deputy head teachers
6
Conduct and discipline of staff
20
7
Staff dismissal/Dismissals by the LEA/
Redundancies
22
8
LEA reports about head teacher performance
26
9
Schools collaborating on staffing matters
29
1
Preamble
This staffing guidance is directly related to, and should be read in conjunction with,
the staffing regulations under sections 35 and 36 of the Education Act 2002. The
staffing regulations (School Staffing (England) Regulations 2003, SI 2003/1963) are
available at - http://www.legislation.hmso.gov.uk/si/si2003/20031963.htm
Use of the word ‘must’ in this guidance refers to a statutory duty flowing from
sections 35 and 36, the staffing regulations under these sections, or other relevant
statutes. Use of the word ’should’ in this guidance indicates the Secretary of State’s
recommended course that should be adopted in any particular functions to which it
relates. These can relate to functions of the LEA, governing body or the head
teacher. Under sections 35(8) and 36(8) of the Education Act 2002, this guidance
must be considered by the LEA or the governing body or the head teacher in
discharging any function conferred by staffing regulations (sections 35(4) and 36(4)).
There is no scope for considering an alternative course of action for any matter in this
guidance where the term ‘must’ is used; this relates to a statutory requirement.
Where ‘should’ is used, it is intended that that is the course that is followed and any
deviation should only be for very good reason.
This guidance is not exhaustive nor does it contain detailed advice about the process
of appointing or dismissing staff. In particular it does not deal with aspects of these
activities which may relate to local practice or procedures, for example,
arrangements for assessing head teacher candidates and short-listing for interview,
or local model staff disciplinary and grievance procedures to ensure good
employment practice.
The regulations and guidance on staffing functions come into effect on 1 September
2003. In general they provide a greater level of flexibility for schools in conducting
staffing matters than former arrangements. In practice they will not prevent schools
from continuing to conduct staffing matters in the same manner required by the
arrangements prior to September 2003, while they make any necessary preparations
to adopt changes. From September 2003 schools will need to consider in particular
the new expectation for head teachers to lead on many staffing matters (section 1).
Many schools will be able to confirm delegation of appointment matters to head
teachers without much delay, but others, whose head teacher is not familiar with
these functions, may need to delay delegation to allow for appropriate preparation.
The need for appropriate preparation would apply in particular to the new expectation
for head teachers to lead in initial staff dismissal decisions. Head teachers may need
some preparation and local procedures (either school policies and procedures or
LEA model procedures) may need to be amended. In general schools should aim to
make any necessary preparation and adoption of new staffing arrangements by April
2004.
2
Summary of changes
Deregulation
Within this staffing guidance there are a number of changes which reflect the move of
staffing arrangements from the School Standards and Framework Act 1998 to a
combination of regulations and guidance under sections 35 and 36 of the Education
Act 2002. The significant practical changes, as a result of this deregulation, are
explained below.
Head teacher responsibility for staff appointments outside the leadership
group and staff dismissals
Section 1 sets out the new expectation for head teachers to take the lead in making
decisions on appointments outside the leadership group and in making initial
dismissal decisions for staff.
Relaxation of requirement to advertise head teacher and deputy head teacher
posts at schools subject to a reorganisation
Paragraphs 2.13 and 2.14 of section 2 set out the circumstances in school
reorganisations where head teacher and deputy head teacher posts will not need to
be advertised.
Appointment of support staff in community, voluntary controlled, community
special and maintained nursery schools
There is no longer a requirement on the governing body to consult the LEA in all
cases where they are appointing a member of support staff, in advance of making a
formal recommendation to the authority. Schools are, however, advised to consult
the LEA in all cases where issues of pay and grading may not be straightforward.
There is a new right for the LEA to make representations after receiving a
recommendation if they have outstanding concerns about pay and grading.
Guidance is at paragraphs 5.4 – 5.10.
Schools collaborating on staffing matters
Section 9 sets out guidance on new arrangements allowing schools to collaborate.
The Collaboration Regulations enable the governing bodies of two or more
maintained schools to work together in relation to staffing (as well as other) functions.
The guidance in section 9 explains how collaborations may apply to the various
staffing functions of schools. Collaborations will give schools more options in carrying
out staffing functions, for example where they wish to draw on a wider pool of
governors, or where they wish to share in the services of a member of staff.
3
Staffing guidance
Section 1
Delegation to head teacher of staff appointments and
dismissals
1.1
The governing body has the overall responsibility for all staff appointments
and dismissals in its school. With the exception of the appointment of heads and
deputies and the dismissal of heads, where different arrangements apply (see
section 2 below), it may delegate these responsibilities to the head teacher, an
individual governor, or a group of governors with or without the head teacher.
1.2
Head teachers will normally be expected to lead in determining staff
appointments outside the leadership group and all initial staff dismissal decisions
(with the exception of the head teacher). Appeals against dismissal should be heard
by governors (see section 7 below). Therefore, other than in exceptional
circumstances (outlined below in 1.3), the governing body should delegate the
responsibility for these matters to the head teacher. The head teacher may involve
other governors in selection or dismissal processes, for example in interviewing
candidates and consulting on their suitability or in hearing representations at a
dismissal hearing, but the final decision should be the head teacher’s. No governors
involved in a dismissal process should be used to hear the appeal against that
dismissal.
1.3
In certain circumstances, outlined below, the governing body may consider
applying alternative arrangements, which may include decisions being made by an
individual governor or a group of governors with or without the head teacher. If an
alternative arrangement is decided, the head teacher has a right to attend to offer
advice. The circumstances are as follows:
4

A head teacher who is unwilling to perform these functions and whose
previous history of service at the school did not include any such
responsibilities. This gives an existing head teacher the option of preserving
their current working arrangements, but when the governing body considers a
new appointment for the head teacher post the normal expectation for the
head teacher to undertake these responsibilities should apply.

Where the head teacher has been directly involved in disciplinary procedures
leading to dismissal, has instigated a proposal to dismiss, or is a witness of
particular conduct giving grounds for the dismissal in question. The
arrangements for delegating initial dismissal decisions will therefore need to
be considered on a case by case basis in the light of circumstances.

Where the governing body of a school with a religious character has agreed
staffing policies which provide for governor involvement in the interests of
preserving the school’s religious character.

Appointments of support staff outside the leadership group who are required
to act in a senior management capacity. This ensures that the governing
body may also lead in the appointment of support staff with senior
management responsibilities.

A head teacher subject to suspension, disciplinary procedures (including
capability), or disciplinary sanction.

Where the LEA has made representations to the chair of the governing body
on grounds of serious concerns about the performance of the head teacher.

Where the head teacher has failed to abide by financial limits agreed by the
governing body for any school purpose.
1.4
The governing body should review, at least annually or otherwise where
necessary, the continuation of any circumstances where the head teacher does not
lead on these staffing matters because of concerns about their conduct or
performance (i.e. the final three indents above). Where a head teacher is on longterm sick leave, secondment or some other long-term absence, the governing body
should consider whether it is appropriate to pass delegated responsibility to the
person acting in the head teacher’s place. The head should have an opportunity to
make representations on any decisions to discontinue or continue delegated
responsibility.
1.5
Where the head teacher is exercising delegated responsibility, this cannot be
delegated on to another person by the head teacher.
Appointment of assistant heads
1.6
Assistant heads are members of the leadership group, but their selection
does not fall under the normal expectation to be delegated to the head teacher. It is
open to the governing body to decide how such posts may be filled within the
statutory arrangements, which may include delegation to an individual governor or a
group of governors. In either case this may include the head teacher, but where not
involved in determining the appointment the head teacher has a right to attend to
offer advice.
5
Staffing guidance
Section 2
Appointment of a head teacher or deputy head teacher
2.1
All schools must have a head teacher. The head teacher is the key post in
school and the quality of the head teacher is a major factor in maintaining and raising
standards, and delivering high quality education. Choosing a head teacher is the
most important decision a governing body can make. It is important that head
teacher vacancies come to the attention of as many suitable persons as possible.
2.2
There is no legal obligation for schools either to have deputy head teachers or
be limited to just one, and therefore no automatic obligation for a governing body to
take steps to replace a serving deputy who leaves his or her post or announces an
intention to do so. The governing body may first wish to consider alternatives such
as reorganising management responsibilities within the school or meet any
continuing staff resource needs by some other means. It is, however, important that
any deputy head teacher vacancies which are identified come to the attention of as
many suitable persons as possible.
2.3
The governing body must as a first step notify the LEA in writing whenever a
vacancy or prospective vacancy occurs in the post of head teacher, or whenever the
governing body decides to recruit a new or replacement deputy head teacher.
2.4
The governing body must advertise a head teacher or deputy head teacher
post as it thinks appropriate. At the very least it should be advertised in a printed
publication circulating throughout England and Wales. The governing body may
consider additional means for advertising the post, including local publications and
the Internet, but all applicants should be considered in the same way.
Head teacher and deputy head teacher selection process
2.5
The governing body must appoint a selection panel consisting of at least
three of their members to do the following;

select applicants for interview (where the post is that of head teacher it must
notify the LEA in writing of the names of the applicants so selected to enable
it to consider its entitlement to make representations about unsuitable
candidates – see section 3 below),

interview selected applicants, and

where they consider it appropriate, recommend an interviewee to the
governing body for appointment.
2.6
If the selection panel’s recommendation is approved by the governing body
the governing body must either,
6

recommend the applicant in question to the LEA for appointment (in the case
of a community, voluntary controlled, community special or maintained
nursery school), or

appoint the applicant in question (in the case of a foundation, voluntary aided
or foundation special school).
2.7
Any decision of the selection panel should be taken by a vote representing a
majority of all the members of the panel whether or not taking part in the vote (if ‘no’
votes and unused votes taken together amount to a majority then a decision would
not be carried).
2.8
The LEA must appoint the person recommended by the panel and approved
by the governing body unless he or she does not meet any relevant staff qualification
requirements. No person can be appointed or engaged unless he or she meets such
requirements.
2.9
Where there is no appointment the governing body may re-advertise the
vacancy and, whether or not it does so, require the panel to repeat the steps at 2.5.
Therefore, if the governing body decide not to re-advertise, the selection panel will be
required to re-run its functions using those candidates who originally applied for the
post. There is no obligation for the governing body to continue with the recruitment of
a deputy head teacher, but all maintained schools must have a head teacher so the
process should be continued until a permanent head teacher is appointed. This
requirement for a head teacher continues to apply even where an acting head
teacher is in place.
2.10 Schools which have a tradition of, or preference for, using the whole
governing body to undertake the detailed selection process, may follow the above
requirements by using the whole governing body to form a selection panel.
Acting head teacher and deputy head teacher appointments
2.11 Where any head teacher post will not be filled before the date on which it
falls vacant, the governing body must appoint, or recommend to the LEA for
appointment, a person as acting head teacher. Where any deputy head teacher
post will not be filled before the date on which it falls vacant, the governing body may
appoint, or recommend to the LEA for appointment, a person as acting deputy head
teacher. Alternatively, the governing body may engage a person to provide his or her
services as acting head teacher, or acting deputy head teacher. ‘Engagement’
means otherwise than under a contract of employment with the governing body or
LEA. The use of an acting head teacher does not remove the head teacher vacancy
or remove the governing body’s duty to fill that vacancy as provided above.
2.12 Where an appointment is to be made under a contract of employment with the
LEA, the LEA must appoint the person recommended unless he or she does not
meet any staff qualification requirements. If the LEA declines to appoint a person
recommended by the governing body because of failure to meet qualification
requirements, the governing body should recommend another person for
appointment.
2.13 Where someone in the post of head teacher or deputy head teacher is absent
the governing body may recommend for appointment (in the case of a community,
voluntary controlled, community special or maintained nursery school), or appoint (in
7
the case of a foundation, voluntary aided or foundation special school), an acting
head teacher or acting deputy head teacher. This is available as an alternative to the
more usual approach of assigning someone within the school to act up in the role, In
the case of head teacher absence the deputy head teacher would normally act up in
the head teacher role. The governing body may also decide to engage, or make
arrangements for the engagement of a person to provide his services as acting head
teacher, or acting deputy head teacher, otherwise than under a contract of
employment with the governing body or the LEA.
Checking people selected for appointment
2.14
Vetting people selected to work with children is an essential part of
safeguarding children. Some checks are also required to ensure teachers meet
statutory requirements, for example about qualifications. Everyone selected for
appointment in a maintained school (including as head or deputy head teacher)
should satisfy checks on identity, academic qualifications, professional and character
references and previous employment history. In addition it is important that, where
appropriate, all those whose work will bring them into contact with children have
obtained a satisfactory Criminal Records Bureau (CRB) Disclosure and meets
appropriate medical fitness requirements. In the case of teachers, checks should also
be made to ensure that they are registered with the GTC, have qualified teacher
status and, where appropriate, have completed induction satisfactorily. Detailed
advice about the checks that should be undertaken is in Part 1 of the Department’s
Circular “Child Protection: Preventing Unsuitable People from Working with Children
And Young Persons in the Education Service” and the Circular “Managing the
Demand for Disclosures”. Those documents can be found on the DfES website at:
http://www.teachernet.gov.uk/docbank/index.cfm?id=2172 and
http://www.teachernet.gov.uk/docbank/index.cfm?ID=3334 respectively.
Scope for ‘good reason’ not to conduct a selection process for head teachers
and deputy head teachers
2.15 Regulations 13(7) and 22(7) of the staffing regulations provide scope for
maintained schools not to advertise and conduct a selection process for head
teacher and deputy head teacher posts. The following circumstances in paragraphs
2.16 to 2.21 should be regarded as the only scope for good reason not to advertise
and conduct a selection process.
Head teacher and deputy head teacher appointments and school
reorganisations
2.16 School reorganisations can present particular staffing problems for the LEA
and the governing bodies of those schools that are reorganised. This can occur in
both merged schools and new schools established from the staff and pupils of
closing schools. Where schools are subject to reorganisations this can mean that
head teachers and deputy head teachers may have to face competing for jobs in a
new or merged school. In some reorganisations there may be an equal match of jobs
between the closing school or schools and the new school, but where this is not
possible redundancies may be necessary. Where a reorganisation involves a transfer
of employer, governing bodies and LEAs will need to consider the relevance of the
8
Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) and
should seek legal advice at an early stage. In the case of reorganisations which
involve schools with a religious character, diocesan authorities with a direct interest
should be closely involved in the process.
2.17 The governing body or temporary governing body of a new or merged school
resulting from a reorganisation should normally advertise the new head teacher and
deputy head teacher posts nationally to ensure that the best available candidates are
considered for these important positions. However, they may take the view that the
head teacher and deputy head teacher posts are not in effect vacant, and therefore
not subject to the advertising or selection requirements, if the following conditions
apply.

The new or merged school is formed from the immediately pre-existing
schools.

For each head teacher or deputy head teacher post available in the new or
merged school there is only one person from the pre-existing schools
available for continued employment in that role in the new school, and that
person’s performance and ability is highly regarded by both the governing
body and the LEA.

Any such person so accepted for a head teacher or deputy head teacher post
has suitable qualifications, experience and ability to undertake the role in the
new or merged school.
Head teacher and deputy head teacher appointments - school federations and
collaborations
2.18 Where a school is a part of a statutory federation a vacancy in the head
teacher post may be filled by the governing body deciding to appoint a person who is
already an existing head teacher at another school of the federation. In such
circumstances the governing body would have good reason not to conduct a
selection process for the purpose of filling the post. This may also apply in the same
way to deputy head teachers being accepted for deputy head teacher vacancies. The
governing body must notify the LEA of its intentions and should consider any advice
before deciding the appointment.
2.19 Where schools agree to collaborate in the appointment of a head teacher, the
governing bodies may decide to appoint a single person to serve as head teacher for
each school. Each school must notify the LEA of the vacancy at its school, and
specify that the selection process will be conducted under collaboration
arrangements with a view to a single person being appointed to cover the vacant
post at each school. This may also apply in the same way to deputy head teacher
vacancies. These circumstances would remove the need to conduct a separate
selection process for each vacancy at the collaborating schools. (For general
guidance on collaboration see section 9.)
Schools with head teachers of departments
2.20 Where a school is organised in two or more separate departments, each with
a head teacher, a person holding the post of head teacher of a department of the
school may continue in that post and exercise the functions of a head teacher as if
9
the department were a separate school. If one of the head teachers ceases to hold
the post of a head teacher of a department, any post of head teacher of a department
will cease to exist and a single post of head teacher will cover the whole school.
These arrangements are provided in the Education Act 2002 (Modification and
Transitional Provisions) (England) Regulations 2003. They are transitional
arrangements to allow schools with head teachers of departments to continue as
such until one of the head teachers ceases in that role.
2.21 Where such a school loses its right to head teachers of departments, the
governing body would have good reason to appoint a head teacher remaining at the
school to the single post of head teacher without the need to conduct a selection
process if it is satisfied as to his or her suitability for the post. Whether or not the
governing body is satisfied about suitability, it may opt to conduct a selection
process (as provided above from 2.5).
10
Staffing guidance
Section 3
LEA representations about head teacher appointments
3.1
The governing body must send the LEA its shortlist of candidates for head
teacher interview. For all categories of maintained school, the LEA is entitled to make
written representations to a governing body if it considers that the governing body
selection panel is short-listing an unsuitable person for appointment. The governing
body selection panel must consider those representations. If it decides to select a
person to whom the LEA has objected, it must notify the LEA in writing of its reasons.
3.2
The following principles should apply:
a.
the LEA should only make representations where it believes that the
candidate, if appointed, would have a detrimental effect on the performance,
management or conduct of the school;
b.
in all cases where the LEA’s representative has attended and given
advice at earlier stages in the appointment process:



any concerns which the LEA has should be raised as soon as
possible in that process;
the LEA should always warn the selection panel if its concern is
serious enough that it would expect to use its power to make
formal representations if the selection panel persisted in
including that candidate on the shortlist of applicants to be
interviewed;
the power to make representations should not be used to
register a new concern, unless the LEA first becomes aware of
that concern after the point when it is notified that the candidate
has been included on the selection panel’s shortlist;
c.
in the case of foundation, foundation special or voluntary aided schools,
where the governing body has not agreed advisory rights with the LEA, the
selection panel’s notification of applicants selected for interview should be
accompanied by enough information to enable the LEA to determine each
applicant’s suitability for appointment;
d.
it is often necessary to move very quickly, particularly in the later
stages of the appointment process. LEAs must make representations about a
candidate in seven days, beginning with the date on which the selection panel
notifies the LEA of its proposed shortlist for interview. But within this limit,
LEAs should respond as rapidly as possible. Where the LEA has been fully
involved in previous stages and no concerns have arisen, it should aim to
respond immediately it receives notification of the shortlist, confirming that it
will not be making any representations;
11
e.
it remains the case that persons appointed as head teachers or
teachers must meet the requirements of any regulations under sections 132
to 135, 141 and 142 of the Education Act 2002 and section 19 of the
Teaching and Higher Education Act 1998 relating to qualifications (including
any related to NPQH), health and physical capacity, and fitness on education
and other grounds (notably barring for misconduct or criminal record). See
regulation 3(3) of the staffing regulations and the footnote which lists all the
relevant regulations applying under these sections. The LEA must refuse to
appoint a person who does not meet the requirements of the regulations if
they are selected for appointment by the governing body of a community,
community special or voluntary controlled school. The governing body of a
voluntary aided, foundation or foundation special school must not appoint
such a person;
f. the types of concern which might appropriately trigger the making of a
representation by the LEA include that:






the candidate is currently, or was recently, the head teacher or a senior
teacher at a school which was found on inspection to require special
measures or to have serious weaknesses, and the inspection report found
that the failure or weaknesses were due in part or whole to deficiencies
attributable to the candidate;
standards of performance in National Curriculum assessments
or public examinations at the candidate’s previous school or
schools have worsened significantly for reasons attributable to
the candidate;
the candidate has never worked in the same phase of school as
the appointing school – e.g. the candidate’s whole career has
been spent in primary schools, and the appointing school is a
secondary school;
the candidate’s experience is inadequate for that particular
school in a respect which risks damaging the school’s
performance – either because the appointing school is facing
particular problems and the new head teacher should be
someone who can provide clear evidence that they have the
skills to tackle such problems; or because the appointing school
has particular strengths which are best developed by someone
with a demonstrable ability in that area;
there has been a pattern of repeated and serious complaints,
over a period of time, from parents, staff, governors or pupils at
the candidate’s previous school or schools – not all stemming
from the same individual or group, but from a number of people
who were originally acting in isolation from each other – which
have not been satisfactorily addressed through action to
investigate what substance there may be to the complaints and
rectify valid causes of complaint;
the LEA of the candidate’s previous school or schools
suspended the school’s delegated budget for reasons of
mismanagement attributable to the candidate, and the school
had not successfully appealed to the Secretary of State against
the suspension of delegation;
g.
the types of concern which should not trigger the making of a
representation by the LEA include that:
12



the candidate is currently deputy head at the same school. (If the
LEA has a concern about an individual’s performance as deputy
head, that is a different matter. There may be cases where, in
the LEA’s judgement, the school is felt to need an infusion of
new ideas and a fresh approach from outside. But a deputy
should not be ruled out, irrespective of his or her performance or
the current needs of the school, merely by virtue of being the
deputy);
the candidate has opinions, beliefs or practices about
pedagogic, management or other issues to do with the conduct
of a school which the LEA does not agree with, but which are
within the field of legitimate professional debate and do not
demonstrably risk damaging standards;
the candidate has not previously worked in the category of
school concerned – e.g. the candidate’s whole career has been
spent in a voluntary aided or independent school and the
vacancy is at a community school.
h.
in all cases, the LEA’s written representation should explain why it has
concluded that the candidate is not suitable, and the evidence on which it has
based its conclusion;
i.
the representation from the LEA does not mean that the governing
body is prohibited from making or recommending the appointment. The final
decision on the person to appoint is for the governing body. But the selection
panel must send the LEA a written response to its representation if it decides
to recommend the candidate to the governing body. That response should set
out the panel’s reasons why they do not agree with the LEA that the
candidate is unsuitable for appointment. This exchange of correspondence
must be made available to the whole governing body.
13
Staffing guidance
Section 4
LEA and diocesan authority attendance and advisory rights in
connection with teacher appointments and dismissals
LEA attendance and advisory rights
Community, voluntary controlled, community special and maintained nursery
schools
4.1
The LEA is the employer of teaching and support staff in community,
community special, voluntary controlled and maintained nursery schools, except for
staff employed otherwise than under a contract of employment with the LEA such as
a contract for services with the governing body.
4.2
The governing body exercises many of the functions of the employer,
particularly in staff appointments and dismissals (except during any time when the
school’s right to a delegated budget is suspended).
4.3
The LEA through a representative has an entitlement to attend (which it may
decide not to exercise), for the purposes of giving advice at;

all proceedings, including interviews, of the governing body, and the selection
panel, relating to the appointment of a head teacher or deputy head teacher;

all proceedings, including interviews, relating to the appointment of other
teachers;

all proceedings relating to any decision that someone working at the school
should be dismissed.
4.4
Any advice given by the LEA representative must be considered by those
concerned before a decision is made.
Foundation, voluntary aided and foundation special schools
4.5
The governing bodies of voluntary aided, foundation and foundation special
schools are in general the employers of the school’s teaching and support staff
(although the LEA may employ some support staff directly). The LEA does not have
an automatic statutory right of attendance at appointment and dismissal proceedings.
But the governing body may accord the LEA rights to attend and give advice. The
coverage for those rights can vary. They may cover either appointments or
dismissals, or both; and may relate to the head teacher and deputy head teachers or
14
all teachers.
4.6
If the governing body do not agree advisory rights, the LEA is entitled to seek
a determination from the Secretary of State to accord such rights.
4.7
Where the LEA is accorded advisory rights, any advice given must be
considered by those concerned before a decision is made.
Diocesan authority attendance and advisory rights
Voluntary controlled and foundation schools which are Church of England or
Roman Catholic Church schools
4.8
The governing body of the school may agree with the diocesan authority of
the diocese in which the school is situated, to accord it advisory rights in relation to
the appointment, engagement or dismissal of teaching staff. The diocesan advisory
rights under such an agreement may relate to all teachers at the school or any
particular category of teacher. These advisory rights would apply in the same way as
those exercisable by the LEA. So the right would include a right to attend and offer
advice at all proceedings relating to the appointment, engagement or dismissal of
any teachers, and any advice offered must be considered by the governing body
and/or any committee or person to whom functions have been delegated when
reaching any relevant staffing decision.
4.9
Where advisory rights are accorded to the diocesan authority, they may be
exercised by an appropriate diocesan officer.
4.10 The agreement of the governing body should be given in writing and any
withdrawal should be by notice in writing to the diocesan authority.
Voluntary aided schools which are Church of England or Roman Catholic
Church schools
4.11 In the case of a voluntary aided school, the diocesan authority should be
given the same advisory rights in relation to the appointment, engagement or
dismissal of teachers at the school as that enjoyed by the LEA. This should apply
whether they have been agreed by the governing body or determined by the
Secretary of State in default of such agreement. The rights should include a right to
attend and offer advice at all proceedings relating to the appointment, engagement or
dismissal of any teachers as applies for the LEA, and any advice offered must be
considered by the governing body and/or any committee or person to whom functions
have been delegated when reaching any relevant staffing decision.
15
Staffing guidance
Section 5
Appointment of staff other than head teachers and deputy
head teachers
Appointing teachers
5.1
There is no automatic obligation for a governing body or head teacher to take
steps to recruit a new teacher when a serving teacher leaves his or her post or
announces an intention to do so. The governing body or head teacher may first wish
to consider alternatives such as reorganising responsibilities within the school or
meeting any continuing staffing needs by some other means, before deciding
whether to recruit a new teacher.
5.2
Where it is decided to recruit a new teacher the governing body (or head
teacher if applicable) must send a specification for the post to the LEA. The post
should be advertised unless it is decided to accept either a teacher already working
at the school, or a teacher nominated by the LEA. Otherwise the post should be
advertised in a manner likely to bring it to the notice of persons (including employees
of the LEA) who are qualified to fill it. This may be done by advertising in a
publication normally used for advertising such posts throughout the LEA.
Appointing support staff
5.3
There are no legal requirements for advertising support staff posts, but the
governing body, or head teacher under delegation, may decide on any appropriate
steps to bring such posts to the attention of suitable candidates. In determining any
appointments, due attention should be given to good employment practice and the
requirements of equal opportunities. Where posts are advertised, the governing body
should ensure that the actual level of pay for the post is made clear – for example
where a pro rata amount is payable as a result of a term-time only contract.
Support staff pay, terms and grading where employed by the LEA (community
voluntary controlled, community special and maintained nursery schools)
5.4
Support staff in community, voluntary controlled, community special and
maintained nursery schools are generally employed by the LEA. (Support staff at
foundation, voluntary aided and foundation special schools may also be employed by
the LEA on agreement between the LEA and the governing bodies of these schools.)
The governing body is responsible for deciding:
16

who should be appointed to a post;

their hours of work in the case of those required to work part-time;

the duration of their contract; and

within certain parameters, their grading and remuneration.
5.5
However, the LEA remains the legal employer, and in particular remains
responsible for ensuring that the requirements of equal pay legislation are complied
with. For this reason it is important that the LEA is consulted about issues of pay and
grading and that the LEA and governing body work together to find a solution that will
both meet the school’s requirements and be consistent with the authority’s legal
obligations. A decision made by one school may have implications for others within
the same authority.
5.6
Under regulation 16, when a governing body wishes to appoint a member of
support staff to work at the school under the employment of the LEA, it must make a
recommendation to the LEA as to the person who should be appointed, together with
a job specification. The job specification must include the proposed hours of work,
duration of appointment, grading and remuneration for the post, and in putting it
together the governing body should refer to agreed advice and job profiles provided
by the National Joint Council for Local Government Services and any associated LEA
pay and grading structure. Contracts should be permanent unless there is a good
reason for them not to be, and governing bodies should take account of the FixedTerm Employees (Prevention of Less Favourable Treatment) Regulations and any
guidance issued on those regulations when considering the use of fixed-term
contracts.
5.7
The job specification should be sufficiently detailed to enable the LEA to
come to a view about the appropriateness of the recommended grade. No offer of
employment should be made until this recommendation has gone forward and the
LEA has had an opportunity to make representations (see paragraph 5.10).
5.8
In making recommendations on pay and grading, governing bodies should
have regard to the responsibilities of the post and to the pay scales, terms and
grading applicable for similar roles or work throughout the LEA area. Schools may
recommend that a support staff member is appointed on any one of the grades
currently in use by the LEA, so long as that grading is justified by the responsibilities
of the post in question. The point on the pay scale within a grade at which the
member of staff is appointed is a matter for the governing body to determine, to the
extent that any flexibility exists within the local authority pay structure. This can take
account of local factors affecting recruitment and retention.
5.9
It will normally be appropriate to use the grade(s) which are used for staff with
similar job titles or who undertake similar roles elsewhere in the LEA. However, there
may be cases where schools wish to employ support staff to take on new kinds of
roles and where a direct parallel does not exist. In these cases, schools should
consult the LEA at the point of determining the job description for the new post, to
enable the governing body to consider any issues of pay and grading raised by the
LEA before putting forward a formal recommendation. They should take account of
any advice offered by the LEA and in particular of the outcome of any job evaluation
process that has been conducted. LEAs should ensure that any concerns they have
are raised at this point, rather than waiting until the governing body’s formal
recommendation is received.
5.10 Once a recommendation has been received from the governing body, the
LEA will normally be expected to appoint the recommended person on the terms
proposed. However, the LEA may make representations to the governing body
within 7 days of receiving the recommendation if it has outstanding concerns about
the recommendations on pay and grading: governing bodies should not make an
17
offer of employment until the end of this 7 day period. Any representations must be
in writing, and should set out the reasons for the LEA’s concern. LEAs should make
use of this provision only where they believe a governing body’s recommendation is
inconsistent with their obligations under equal pay legislation.
5.11 In these circumstances, the governors must consider the representations
made by the LEA, and in particular the risks and implications of any legal action
which might arise if they do not change their recommendation. If they conclude that
their recommendation should stand, they must provide in writing to the LEA an
explanation confirming the reasons why they consider their recommendation to be
appropriate. This explanation should be provided before the candidate is appointed
to post. On receipt of either such an explanation or a revised recommendation, the
LEA must appoint the recommended person on the terms proposed unless he or she
does not meet the staff qualifications for the post (as set out in regulation 3(3) of the
staffing regulations).
Support staff pay, terms and grading where employed by the governing body
(foundation, voluntary aided and foundation special schools)
5.12 Support staff in foundation, voluntary aided and foundation special schools
are generally employed by the governing body (though they may be employed by the
LEA by agreement – see paragraph 5.4). The pay and grading of these staff is for
the governing body to determine. Governing bodies should be careful to consider
their obligations under equal pay legislation when making these decisions. Advice
may be sought from the LEA, who will have greater experience of determining
appropriate grades for individual posts.
School Meals Staff employed by the LEA
5.13 The staffing regulations allow for school meals staff employed by the LEA to
be managed by either the LEA or the governing body, depending on who is
responsible for providing school meals. This will be the governing body if funding for
meals has been delegated to it. Local arrangements for the provision of school meals
will therefore determine whether the LEA or the governing body is responsible for the
appointment, discipline, suspension and dismissal of school meals staff.
5.14 Where the governing body has responsibility for school meals provision, the
same arrangements will apply for the appointment, discipline, suspension and
dismissal of such staff as apply for support staff generally in the staffing regulations
and this guidance, unless the school has entered into an agreement with the LEA to
supply meals on a buy-back basis
5.15 The LEA may have responsibility for school meals staff either directly, if it has
retained meals funding centrally; but it will also do so if the governing body enters
into an agreement with the LEA to provide school meals and manage the relevant
staff. Under such an agreement the governing body (or head teacher under
delegation) may decide that any member of school meals staff should cease to work
at the school. The governing body (or head teacher) must notify the LEA in writing of
the reasons for the decision and the LEA must require the person to cease to work at
the school. Whether the responsibility for staff is direct or under an agreement, the
LEA must consult the governing body in question before exercising any functions
related to the appointment, discipline, suspension or dismissal.
18
Checking people selected for appointment
5.16
Vetting people selected to work with children is an essential part of
safeguarding children. Some checks are also required to ensure teachers meet
statutory requirements, for example about qualifications. Everyone selected for
appointment in a maintained school (including as head or deputy head teacher)
should satisfy checks on identity, academic qualifications, professional and character
references and previous employment history. In addition it is important that, where
appropriate, all those whose work will bring them into contact with children have
obtained a satisfactory Criminal Records Bureau (CRB) Disclosure and meets
appropriate medical fitness requirements. In the case of teachers, checks should also
be made to ensure that they are registered with the GTC, have qualified teacher
status and, where appropriate, have completed induction satisfactorily. Detailed
advice about the checks that should be undertaken is in Part 1 of the Department’s
Circular “Child Protection: Preventing Unsuitable People from Working with Children
And Young Persons in the Education Service” and the Circular “Managing the
Demand for Disclosures”. Those documents can be found on the DfES website at:
http://www.teachernet.gov.uk/docbank/index.cfm?id=2172 and
http://www.teachernet.gov.uk/docbank/index.cfm?ID=3334 respectively.
19
Staffing guidance
Section 6
Conduct and discipline of staff
All maintained schools
6.1
The regulation of staff conduct and discipline is under the control of the
governing body.
6.2
The governing body must establish staff disciplinary rules and procedures
and must take appropriate steps for making them known to staff. These must include
rules and procedures for dealing with lack of capability on the part of any member of
staff.
6.3
Procedures for giving members of staff the opportunity for seeking redress for
any grievance relating to their employment are also under the control of the
governing body. The governing body must establish such procedures and make them
known to staff as appear to the governing body to be appropriate.
6.4
In many cases schools adopt model rules and procedures drawn up by their
LEA. These model rules and procedures have the advantage of being drawn up with
the benefit of the professional expertise and experience of the LEA and in
consultation with representatives of staff unions and associations. Other models may
also be in use, such as those provided by religious authorities in the case of some
schools with a religious character. These model rules and procedures do not relieve
the governing body of its responsibility for the control of staff conduct and discipline.
In adopting or reviewing any such models the governing body should ensure that its
ultimate responsibility for the regulation of staff conduct and discipline is not
overridden by another body or authority. All schools should have procedures for
dealing with allegations against members of staff. Guidance about this prepared
jointly by the National Employers Organisation for School Teachers and the 6 teacher
unions can be found at:
http://www.lgemployers.gov.uk/conditions/education/allegations/
Staff suspension
6.5
Both the governing body and the head teacher can suspend any staff
employed or engaged at the school but only the governing body can lift the
suspension. When imposing or lifting a suspension, the governing body must
immediately inform the head teacher, and the head must immediately inform the
governing body when imposing a suspension. In the case of the governing body, in
practice this function would either be undertaken by the Chair of governors under
urgency powers, or delegated to a governor or group of governors. This would avoid
the governing body considering a suspension in full session and therefore avoid the
possibility of undermining the impartiality of governors who may be required to
consider matters at a later stage.
6.6
In the case of community, voluntary controlled, community special and
maintained nursery schools the LEA must be immediately informed about the
20
imposing or lifting of a suspension. In foundation, voluntary aided and foundation
special schools, where agreement has been reached with the LEA for the LEA to
employ any staff, the LEA should be immediately informed about the imposing or
lifting of suspension in relation to those staff.
6.7
The suspension of a member of staff is a neutral act and should only be used
to enable a matter to be investigated, or in the interests of protecting children and/or
staff while a matter is investigated pending any further action that may be necessary.
21
Staffing guidance
Section 7
Staff dismissal
All maintained schools
7.1
An initial staff dismissal determination should normally be taken by the head
teacher (see section 1 above) following a hearing to give the member of staff in
question an opportunity to make representations. If the LEA has advisory rights, it
should be notified whenever such a decision is being contemplated. Where the head
teacher is not exercising delegated responsibility for dismissal, or the head teacher is
being considered for dismissal, the decision should be delegated to a hearing of at
least three governors unless there are not enough governors who have not been
involved in any previous action or decision connected with the dismissal. In this case
the decision should be delegated to two governors. The absolute scope in the
regulations is for such dismissal determinations to be delegated to the head teacher,
or one or more governors, but the arrangements set out above should be applied.
7.2
The governing body must also give any member of staff against whom an
initial dismissal decision has been made, an opportunity of appealing against that
decision. This must be delegated to an appeal hearing of at least three governors
who have not been involved in any previous action or decision connected with the
dismissal. Where there are not enough such governors available the appeal may be
heard by two governors, but there should be no fewer than the number that made the
initial decision.
7.3
Notification of at least a week should be given to the member of staff in
question before any hearing or appeal in connection with a dismissal determination.
In the case of an initial hearing the member of staff should be provided with written
details of the complaints or allegations. The member of staff is entitled to be
accompanied by a union representative or colleague.
7.4
In the case of staff employed otherwise than under a contract of employment
with the LEA or governing body, notification of the initial dismissal decision and the
reasons for it should be sent to the employer and it will be for the employer to
withdraw that person from the school and take whatever further action it considers
appropriate. If a subsequent appeal against dismissal is upheld the withdrawal may
be rescinded. Any contracts for services of such staff that the governing body enters
into should make clear that these arrangements for the dismissal of staff will apply.
7.5
The above arrangements for the governing body (and head teacher) to afford
dismissal hearings do not apply to members of staff who;
22

have not been continuously employed for 12 months, or

have failed to meet any staff qualification requirements as defined by
regulation 3(3) of the staffing regulations.
7.6
There is therefore no obligation on the governing body (or head teacher) to
afford dismissal hearings to persons at the end of limited periods of work within one
year, such as supply teachers or those covering a period of maternity leave. This
also applies to teachers (including head teachers) whose continued employment is
dependent on obtaining a specified qualification and this has not been achieved, and
members of staff whose continued employment is restricted by the Secretary of State
or the General Teaching Council(on grounds of unsuitability to work with children,
misconduct, health, or professional competence).
7.7
Schools and LEAs have a statutory duty to make a report when they dismiss,
or cease to use a person’s services, as a teacher or in work involving regular contact
with children, in certain circumstances. Guidance about the circumstances in which
there is a duty to report, and the information that must be provided with the report
can be found on the Department’s website at:
http://www.teachernet.gov.uk/docbank/index.cfm?id=4391.
Community, voluntary controlled, community special and maintained nursery
schools
7.8
Where a governing body determines that any person employed or engaged
by the LEA to work at the school should cease to work there, notification of the
decision and the reasons for it must be sent to the LEA. If the member of staff is
employed by the LEA, it must within a period of 14 days, either issue notice
terminating the employment contract, or terminate the contract without notice if they
are entitled to do so by reason of the person’s conduct. If, in the case of a
redundancy, the LEA is able to offer suitable alternative work, any continued
employment should be provided under a new contract. If the person concerned is not
employed or engaged by the LEA, the LEA must require him or her to cease to work
at the school. If a subsequent appeal reverses the decision the withdrawal or
termination notice may be rescinded. In cases where the contract is terminated
without notice because of the conduct of the member of staff in question, the
termination may be rescinded if an appeal is upheld.
Foundation, voluntary aided and foundation special schools
7.9
In the case of staff employed by the governing body, notice terminating the
employment contract should be issued following the dismissal decision, and may be
rescinded if a subsequent appeal is upheld. In cases where the governing body is
entitled to terminate the contract without notice because of the conduct of the
member of staff in question, the termination may be rescinded if an appeal is upheld.
In the case of staff employed by the LEA the arrangements set out above should
apply.
Dismissals by the LEA
7.10 Staff dismissal decisions are normally a matter for the school, but the LEA
may dismiss staff in its employment directly in the following circumstances.

Where the school’s delegated budget has been suspended.

Where the Secretary of State or the General Teaching Council have restricted
further employment of any member of staff because of previous conduct or
capability.
23

Where an unqualified teacher has failed to secure QTS (qualified teacher
status) within time limits set out in regulations.

Where a head teacher has failed to secure the National Professional
Qualification for Headship within time limits set out in regulations.
7.11 The circumstances above will remove the governing body’s (and the head
teacher’s) responsibilities for the dismissal process including dismissal hearings and
appeals.
Redundancies
7.12 If a school no longer needs the post of a member of staff whose employment
contract says that his or her place of work is at the school in question, the governing
body may declare that person redundant. Before any person is dismissed on
grounds of redundancy the governing body should ensure that it has received
appropriate advice on meeting its employment law responsibilities. The employee
should then be dismissed using the dismissal procedures in accordance with the
staffing regulations and the guidance set out in this section.
7.13 Whenever a governing body anticipates redundancies, it should obtain advice
from the LEA or any other professional personnel service provider which it may retain
for this purpose. If the member of staff in question is employed by the LEA, the
governing body should notify the LEA as soon as possible. Governing bodies should
consider notifying the LEA even where the LEA is not the employer as it will still be in
a position to provide information on possible vacancies at other schools. The LEA is
not generally able to offer alternative work in other schools in its area as this
discretion normal rests with the governing bodies of those schools, but he LEA may
nominate persons for posts in those schools.
7.14 In some cases a member of staff’s employment contract may not limit his or
her work to a particular school, but allow placement to other schools in the LEA.
Members of staff who are employees of the LEA may work at more than one school
as a matter of routine. A governing body cannot declare a member of staff with a
contract of this kind redundant on its own. It must first tell the LEA that it wants to
reduce its staff and ask the LEA to consider other suitable posts in the LEA. If there
are none, the LEA will then start redundancy proceedings. Only at the end of these
proceedings, after being informed by the LEA, can the governing body decide that a
member of staff is redundant.
Although dismissal, resignation and retirement costs do not relate to provisions under sections 35 and
36 of the Education Act 2002, the following guidance on these is included here for information
Dismissal, resignation and retirement costs
Costs incurred by the LEA in respect of the dismissal or for the purpose of securing the
resignation of a member of the school’s staff may not be met from the school’s delegated
budget unless the LEA has good reason for deducting those costs. Having ‘good reason’
provides a safeguard for the LEA against ill-judged action by a governing body – for example,
dismissals which lead to successful claims of unfairness before an employment tribunal, or
excessive severance payments. It is important that the LEA decides whether or not to meet
the costs of the claim itself on the basis of all the facts rather than simply the outcome of the
24
legal proceedings.
Costs arising from premature retirements must be met from the school’s delegated budget
except where the LEA agrees with the governing body in writing to meet them centrally.
Costs can also be incurred by LEAs through the action of governing bodies exercising their
staffing functions in other areas, such as discrimination claims in appointment procedures.
LEAs – taking account of any guidance given by the Secretary of State on their arrangements
for school funding – should consider how such costs should be handled and provide for this in
their funding arrangements.
25
Staffing guidance
Section 8
LEA reports about head teacher performance
8.1
For all categories of maintained school, LEAs have a duty to make a written
report to the chair of the governing body in any case where they have a serious
concern about the performance of the head teacher.
8.2
LEAs should take the following principles into account when deciding whether
to make a report:
a.
the LEA should have grounds for concluding that the head teacher’s
performance is having a detrimental effect on the performance, management
or conduct of the school, or would soon have such an effect if action were not
taken;
b.
such a report should not come as a surprise either to the chair of the
governing body or to the head teacher. The LEA should always have first
registered its concern informally with the head teacher. If that did not lead to
appropriate action, the concern should then be taken up with the chair of
governors (see i. below on involving other governors). The LEA should
always have given advance warning of its intention to issue a formal report if
action to secure the necessary improvement were not forthcoming;
c.
before issuing a report, the LEA should always consider whether its
concern would be better pursued through the performance management
(appraisal) arrangements;
d.
the types of concerns which might trigger the making of a report by the
LEA include that:




26
the school has been found at inspection to require special
measures or to have serious weaknesses, and the LEA
considers that the post-inspection action plan is seriously
deficient;
standards of performance in National Curriculum assessments
and/or public examinations at the school have worsened
significantly for reasons attributable to the head teacher’s
performance;
the school is falling a long way short of the performance targets
agreed with the LEA, or standards can be shown by analysis of
benchmark information to be well below those achieved by
comparable schools, for reasons attributable to the head
teacher’s performance;
there has been a pattern of repeated and serious complaints,
over a period of time, from parents, staff, governors or pupils –


not all stemming from the same individual or group, but from a
number of people who were originally acting in isolation from
each other – which have not been satisfactorily addressed
through action to investigate what substance there may be to the
complaints and to rectify valid causes of complaint;
there is significant evidence of continuing and systematic
weakness in the management of the school or in its financial
controls which, if not tackled, risks significant disruption to the
school’s continuing operation;
serious concerns about the discharge of staffing responsibilities
delegated to the head teacher, including failure to consider
appropriate disciplinary action in relation to a member of staff;
e.
the types of concerns which should not trigger the making of a report by
the LEA include that:



the head teacher has opinions, beliefs or practices about
pedagogic, management or other issues to do with the conduct
of a school which the LEA does not agree with, but which are
within the field of legitimate professional debate and are not
demonstrably damaging standards;
the head teacher has not co-operated with the LEA, or complied
with a request from the LEA, on an issue where he or she was
under no legal obligation to do so;
although the head teacher’s personality or style makes relations
with the LEA difficult, there is no evidence that this is damaging
standards or the satisfactory running of the school;
f.
the report should always state the grounds for the LEA’s concern, and
the evidence on which it is relying. In making the report, the LEA should also
advise the chair of the governing body on action which it may be appropriate
to take;
g.
the LEA must always send a copy of the report to the head teacher at
the same time as it is sent to the chair of the governing body. The head
teacher should always have an opportunity to make representations to the
chair of the governing body and to the LEA about the report. The head
teacher should be allowed to be accompanied by a union representative or
colleague at any meeting he or she is asked to attend with the governing
body to discuss the LEA report;
h.
the chair of the governing body must notify the LEA in writing of the
action which he or she proposes to take in the light of the report. The chair of
the governing body is not obliged to accept the report or to take any particular
action indicated by the LEA. In particular, he or she is under no obligation to
commence disciplinary or dismissal proceedings. However, the chair of a
governing body should always take such a report very seriously, examine
carefully the LEA’s reasons and evidence for raising the concern, and give
the LEA a properly considered response;
i.
the chair of the governing body will need to decide, depending on the
details of the case, whether the full report should be put to, and discussed by,
the whole governing body or a committee of the governing body. Where there
27
is a possibility of disciplinary action, the chair must ensure that there are
sufficient governors available to carry out impartially the functions of any
disciplinary and appeals hearings. Members of the disciplinary and appeals
hearings need not be left in complete ignorance; knowing about a situation
does not constitute prejudice. All of the governors should be informed that
the LEA has issued a report and broadly of the nature of its concerns, in view
of their collective responsibility for the conduct of the school. However,
members of hearings should be careful not to become directly involved, either
through expressing opinions or taking action which might be seen to have
prejudiced their ability to hear a case fairly. They must avoid taking a view on
the validity of the concern raised by the LEA and the appropriateness of any
disciplinary or dismissal outcome in advance of the hearing. Where members
of hearings receive reports or papers on a case prior to a hearing, they must
take particular care not to divulge or discuss the contents with other members
or any other persons before the hearing takes place.
28
Staffing guidance
Section 9
Schools collaborating on staffing matters
9.1
The Collaboration Regulations (the School Governance (Collaboration)
(England) Regulations 2003, S.I. 2003/1962) enable the governing bodies of two or
more maintained schools to work together in relation to staffing (as well as other)
functions. If collaborating governing bodies wish jointly to discharge functions relating
to individual members of staff (such as appointments and dismissals), then Part 4 of
the Staffing Regulations applies. These provisions allow schools to draw on a wider
pool of head teachers and governors for the various staffing matters and this
approach can be used either where the post or member of staff concerned relates to
one of the collaborating schools, or is shared between more than one of those
schools. So schools may agree to collaborate for different reasons, either to make
use of the wider help and experience of other governors, or where schools wish to
undertake staffing functions jointly where they share in the services of a member of
staff.
Appointment of head teacher and deputy head teacher
9.2
Where governing bodies agree to collaborate on the appointment of a head
teacher, or deputy head teacher, they must notify the LEA and specify the school (or
schools) for which the post applies (see also paragraphs 2.15 and 2.19 on shared
appointments). The collaborating governing bodies must appoint a selection panel of
at least three governors taken from any of the collaborating governing bodies.
Proposals for collaboration, arrangements for advertising, and the membership of the
selection panel may be discussed informally between governors of the relevant
schools, and put forward for ratification at formal meetings of the governing bodies.
Once confirmed by the collaborating governing bodies, the post must be advertised
in a publication circulating throughout England and Wales as they consider
appropriate, and the selection panel must undertake the functions set out in
paragraph 2.5 above. Where the selection panel decides on a candidate to
recommend for appointment, it must make its recommendation to the governing body
of the school at which a vacancy arises, or, in the case of a shared appointment, to
each relevant governing body. The appointment may be made once the relevant
governing body or governing bodies have approved the recommendation.
Appointment of other teachers and support staff
9.3
Where governing bodies agree to collaborate on the appointment of other
teachers (for a period of more than four months), they must draw up a specification
for the post, send it to the LEA, and specify the school (or schools) for which the post
applies. Where governing bodies agree to collaborate on the appointment of support
staff to be employed by the LEA, they must send the specification for the post to the
LEA with its recommendation of the person to be appointed, and specify the school
(or schools) to which the appointment applies.
29
9.4
The collaborating governing bodies may delegate the selection to one person
or any combination of persons drawn from the head teachers and governors from the
collaborating schools. Proposals for collaboration, arrangements for advertising (if
necessary), and the delegation of the selection may be discussed informally between
governors of the relevant schools, and put forward for ratification at formal meetings
of the governing bodies.
9.5
The selection of other teachers and support staff under collaboration
arrangements should be delegated to the head teacher, or head teachers, of any
collaborating school, or schools, for which the post applies whenever any relevant
head teacher is expected to lead in the selection of such staff (see section 1).
Dismissal of staff
9.6
School governing bodies are free to choose whether or not to collaborate on
the dismissal of a member of staff, whether or not that person’s appointment was
made under collaboration arrangements. A decision to collaborate may be taken on
the merits of the particular circumstances under consideration. It may, for example,
be that many governors have had previous direct involvement with the staffing matter
in question, and because of this there are insufficient eligible governors to hear the
matter fairly. Although knowledge of a particular matter alone does not necessarily
render someone ineligible, there may be advantages for governing bodies to
collaborate where there are insufficient governors, or in smaller schools and
communities where the closeness of local social contacts make governors
uncomfortable about taking decisions on dismissal matters.
9.7
Where school governing bodies agree to collaborate on these issues, the
determination to dismiss a member of staff or a decision that that person should
cease to work at a school may be delegated to one person or any combination of
persons drawn from the head teachers and governors from the collaborating schools.
In the case of staff other than head teachers, the person or persons to whom an
initial determination is delegated should include any head teachers of the
collaborating schools that are expected to lead in deciding such matters (see section
1). An initial determination in relation to a head teacher, and any appeal against this,
may be delegated to any combination of three or more governors drawn from the
collaborating schools, but should not include head teachers.
9.8
Collaborating governing bodies, and those to whom matters have been
delegated by them, should take particular care when considering the position of a
member of staff employed to work at more than one of the collaborating schools,
whether under a single contract or separate contracts of employment. While there
may be grounds to dismiss fairly from one of the schools, this does not necessarily
mean that there will be such grounds to dismiss that person from employment at
another school. Appropriate legal and professional advice should be obtained before
proceeding with such a matter.
LEA entitlements to advise on staffing and make representations about head
teacher appointments
9.9
The LEA is entitled to attend and offer advice in respect of all determinations
relating to appointments and dismissals of teachers at community, voluntary
controlled, community special and maintained nursery schools. In the case of
foundation, voluntary aided and foundation special schools LEA advisory rights may
be agreed by the governing body. Where an LEA has advisory rights at any of the
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collaborating schools, those rights shall apply to any relevant determinations of the
collaborating schools.
9.10
The LEA’s entitlement to make representations about unsuitable head
teacher candidates (see section 3) applies to a head teacher selection panel of
collaborating schools and to the collaborating governing body of the school or
schools at which the vacancy arises in the same way that it applies to a governing
body selecting a head teacher on its own.
9.11 For any decisions relating to teachers at collaborating voluntary aided schools
which are Church of England or Roman Catholic schools, the diocesan authority
should be given the same advisory rights as those given to the LEA (see section
4.11). For such decisions relating to collaborating voluntary controlled and
foundation schools which are Church of England or Roman Catholic schools, the
governing body may agree advisory rights with the diocesan authority (see sections
4.8 to 4.10).
Mixed category collaborations
9.12 School governing bodies should consider carefully the potential benefits and
disadvantages of different categories of school collaborating on staffing matters. In
particular, a collaborating school with a religious character will only retain its
particular staffing safeguards under sections 58 to 60 of the School Standards and
Framework Act 1998 (such as choosing teachers with a personal commitment to the
religion of the school) where the staffing matter in question relates solely to that
school. These safeguards would not apply, for example, in collaborations on shared
appointments where a collaborating school did not have a religious character.
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