Handling the Capability Procedure and Performance Issues in Schools

Year Published: 2016

School governing bodies are required by law to have procedures in place to deal with a lack of capability in members of staff. If a teacher falls below the level of competence expected, the capability procedure will ensure they are dealt with in a fair, efficient way, in accordance with good employment practice.

Poor performance vs. misconduct

The ACAS (Advisory, Conciliation & Arbitration Service) Code of Practice on Disciplinary and Grievance Procedures uses the term “discipline” to cover both poor performance and misconduct but acknowledges that some employers may wish to have separate procedures.

Schools typically use their disciplinary procedures to cover misconduct alone, and handle poor performance under a separate procedure, widely titled a ‘capability procedure’.

It is therefore important that schools implement standards for good performance and establish procedures for dealing with staff that do not attain those standards. Such standards should be generally in line with the Teachers’ Standards, set by the government.

Dismissal for inadequate performance usually falls within the category of “capability or qualifications” in s. 98(2) (a) of the Employment Rights Act 1996. However it is important to remember that even if there is an issue of poor performance the employee is still protected by the rules around unfair dismissal.

Should formal procedures be implemented against a member of staff it is possible to remove an incompetent teacher within a very short period of time, as long as there is evidence for a fair dismissal.

Members of staff with medical problems

When a lack of competence is caused or aggravated by medical problems that cannot be alleviated by professional support or introducing other methods of working, the Head Teacher should consider retiring the teacher on grounds of ill health, using the benefits available in the Teachers’ Pension Scheme.

Failure to consider this could render a dismissal unfair. There is also an implied obligation on employers to behave reasonably and not to deprive an employee of ill-health benefits in a dismissal situation.

Duty to Disclose Information about Capability Proceedings

The School Staffing (England) (Amendment) Regulations 2012 brought an obligation on maintained schools who dismiss a teacher for serious professional incompetence to report the matter to the National College for Teaching and Leadership (England) or the Education Workforce Council (Wales).

The governing body must also disclose if and why a teacher has been subject to capability procedures during the previous two years, if asked by the governing body or proprietor of another maintained school or academy.

In light of this, and in order to decide what information would be given if requested, it is important to decide exactly when a teacher entered the capability procedure.

It is not just the formal stage of any capability procedure that triggers the obligation. Any so-called informal part of the procedure that is, in reality, an integral part of the overall capability structure would also trigger it. However, if the school is handling a capability issue according to the ACAS Code of Practice of Disciplinary and Grievance Procedures, in which the use of a “quiet word” is recommended prior to instituting formal processes, the quiet word and the management actions associated with it would not have to be divulged under the duty to disclose.

Dismissal on the grounds capability

A teacher who is dismissed on the grounds of capability is dismissed with contractual notice and has the right of appeal to the Appeals Committee of the Governing Body.

Appealing a Decision

A member of staff who is dismissed under a capability procedure has the same right of appeal as in a misconduct case.

Capability Procedure in three easy steps

  1. The initial formal meeting should establish facts, allow the staff member to respond, and identify new information or contextual details. The capability procedure should only be used where the appraisal process cannot/could not address the identified concerns;
  2. The formal review meeting establishes whether progress has been made and whether the matter is resolved or not;
  3. The decision meeting considers whether a dismissal is justified and is within the range of reasonable responses that an employer might take.

For more information on handling the capability procedure and any performance issues in schools, please contact our Employment Law and HR team on 0161 475 7676.

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