Schools

All schools should have a  performance management policy in place, which provide consistency and fairness and so staff members understand what is expected of them.  The ACAS Code of Practice must also be followed when dismissing an employee, see:

https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

Performance Management policies are not routinely incorporated into contracts of employment  and they can be produced and implemented based on your specific needs and requirements. If a local authority policy has been inherited following an academy conversion, it is possible to seek to introduce a bespoke policy which may better suit your needs. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing policies are contractual. We would recommend legal advice is taken before you take any formal steps.  For an example performance management policy and procedure see:

P13      Performance management policy and procedure

Schools are required to undertake annual appraisals, including annual pay progression decisions for teachers.   This process will set targets and objectives for the coming year.  In conjunction with regular informal meetings, these processes are helpful in identifying any training needs and areas of improvement before they become problematic.

Separate to the performance related pay process, schools may also need to tackle performance issues, such as underperformance, poor quality teaching or mistakes.  If performance does not improve then it may be appropriate to use the performance management policy and procedure, which may set out a performance improvement plan with formal targets for improvement and potential formal improvement warnings if performance does not improve to a required standard.  For further guidance please see:

P1: How to Guide – Managing Poor Performance.

You want your staff to perform to an acceptable standard to ensure the best possible outcomes for pupils.

You should also be aware of the guidance which Ofsted includes in paragraph 28 (page 11) of the School Inspection Handbook (2015):

• Ofsted will usually expect to see evidence of the monitoring of teaching and learning and its link to teachers’ performance management and the teachers’ standards, but this should be information that the school uses routinely and not additional evidence generated for inspection.

Employees with less than 2 years’ do not have protection from unfair dismissal, however care should be taken to ensure your records accurately reflect their length of service.

If an employee does have less than 2 years’ service, then it is technically possible to dismiss this short serving employee for poor performance without issuing any previous formal warnings.  However, you need to be mindful of whether this may cause industrial relations issues with the Trade Unions, and also mindful that there are employment claims, such as discrimination claims, which do not require the employee to have a minimum level of service, and therefore following the normal performance process may be a safer option.

Furthermore, recruiting and training staff to work in the school can be time consuming and costly so it is usually a good idea to raise the problem with the employee to give them an opportunity to address this before considering dismissal.

Our HR Protect for Schools performance management policy, P13: Performance Management Policy and Procedure applies to all employees but expressly states that employees with less than 2 years’ service can be dismissed without any previous warnings.

Normally this would involve inviting the employee to a meeting to discuss their performance, setting out your concerns and then setting a performance improvement plan (often called a “PIP”) which sets out the necessary improvements.  If the required improvements are not made then formal meetings are arranged, resulting in performance improvement warnings and ultimately, if there is no/insufficient improvement, the employee may be dismissed.  For a clear visual explanation of the process please refer to the following flowchart:

P2: flowchart of performance management process

The performance improvement process broadly involves:

• Identify the performance issues
• If the performance issues have not been addressed with the employee at all an informal discussion should usually take place to provide an opportunity to improve before moving on to the formal stage.
• Invite the employee to a performance improvement meeting, setting out the performance concerns, see:

P3: Invitation to stage 1 performance improvement meeting

P7: Letter of invitation to short serving employee potential dismissal for poor performance

• Hold the performance improvement meeting with the employee and allowing the employee to respond to the performance concerns and agreeing a timescale for improvement, see:

P15: Guide to Conducting Formal Performance Improvement Meetings

• Deciding on an appropriate sanction, confirming this in writing, see:

P8: Written warning (poor performance)

P12: Termination of Employment Short Serving Employee (Poor Performance)

• If the performance does not improve then invite them to a further meeting, see:

P4: Invitation to stage 2 performance improvement meeting

• Confirming the outcome, see:

P9: Final Written Warning (Poor Performance)

• If the performance still hasn’t improved invite the employee to a final meeting to consider their potential dismissal, see:

P5: Invitation to stage 3 performance improvement meeting.

• Confirm the outcome in writing and give them the right to appeal, see:

P10:Termination of Employment (Poor Performance)

• If someone exercises their right of appeal then invite them to an appeal meeting which will usually take place with Governors / Trustees, see:

P9: Invitation to Appeal Hearing

• Hold the appeal meeting and decide on an outcome to the appeal, confirming this in writing, see:

P16: Guide to Conducting Appeal hearing

P11: Appeal Hearing Outcome Letter

If the incompetence was wilful then it should be dealt with as misconduct, rather than a performance issue, and if this is gross misconduct then the individual can potentially be dismissed for this one-off act.

However, assuming that it was not intentional or wilful, then it will normally be difficult to dismiss for a single act of incompetence.  This is because the purpose of a performance improvement policy is to support the employee to improve and to allow them time and opportunity to improve.  Only if their performance does not improve can dismissal be justified.  Despite this, in very rare cases dismissal can be justified if the incompetence had particularly serious or hazardous consequences, but this will need to be considered on a case by case basis.  We would recommend you seek legal advice on this.

This depends on the circumstances. If there is a pattern of the employee’s performance dipping as soon as the warning period has ended, then it may be reasonable to extend the warning period.  However, if the underperformance is suspected to be intentional it may be better to deal with it as misconduct.

Yes, the right to be accompanied, which applies to all employees, applies to formal performance management hearings.  This is because any action which can result in a disciplinary action, including dismissal, triggers the right to be accompanied and so the employee has the right to be accompanied by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.

• Not accurately characterising the problem. There can be a cross-over between poor conduct (which should be dealt with under your disciplinary procedure) and poor performance.  It is therefore important to establish the cause of the problem at an early stage.  For example, poor teaching could be due to poor performance caused by a lack of training or support, or alternatively it could be due to laziness which would be a conduct matter and it is important to identify correctly what the issues are.
• Not raising performance problems in a timely manner. This is important because raising the problem early makes it easier for the employee to improve their performance, which is often cheaper and less time consuming than recruiting a replacement to work in your school.  It also means that the school can make a decision about the employee’s future before they achieve 2 years’ service and also prove that the employee was given a chance to turn things around which is more likely to make any subsequent dismissal fair.

  Allowing poor performance to carry on for a considerable time without any intervention can also make it more difficult to dismiss, and is very frustrating for the employer and fellow colleagues who work alongside them in school!

• Not obtaining sufficient evidence to support the poor performance. Documentary evidence is key and should be gathered and sent to the employee in the letter inviting them to the first performance management meeting.  The evidence should then be discussed and the discussion documented in the notes of the performance hearing(s).  A dismissal risks being unfair if the investigation into the poor performance was not reasonable.
• Not giving the employee sufficient time or support to improve. This is fact sensitive and will depend on the nature of the poor performance, the employee’s explanation, their length of service, the training they have had, and whether there have been any changes to their work etc.