Disciplinary and dismissal procedures for school staff

Transcription

1 Revised guidance for governing bodies Guidance Welsh Government circular Date of issue:

2 procedures for school staff Audience Overview Action required Further information Additional copies Status of documents Governing bodies of maintained schools in Wales; local authorities (LAs), school staff unions and diocesan authorities. This document offers revised guidance to schools, governing bodies, LAs and school staff unions on the management of the conduct and discipline of staff at the school, including allegations involving issues of child protection. It includes a model procedure in Annex I which it is recommended that governing bodies adopt. All governing bodies must have regard to this guidance when reviewing and implementing their staff disciplinary procedures and must liaise with local staff unions over any changes to their staff disciplinary policy. Governing bodies should seek advice about staff disciplinary matters from their local authority governor support officer. Advice may also be obtained from Governors Wales helpline (tel: ; helpline@governorswales.org.uk). Enquiries about this guidance should be sent to: Schools Management and Effectiveness Division Department for Education and Skills Welsh Government Cathays Park Cardiff CF10 3NQ Tel: SMED2@wales.gsi.gov.uk This document can be accessed from the Welsh Government s website at This circular guidance replaces Staff Disciplinary Procedures in Schools National Assembly for Wales Circular No: 45/2004 and three letters about independent investigation of allegations of a child protection nature as noted below: (i) investigation of child protection allegations against school staff (9 November 2006) (ii) appointment of an independent investigator by school governing bodies for school staff disciplinary proceedings involving child protection allegations (30 March 2007) (iii) investigation of child protection allegations against school staff by independent investigators (30 August 2007). Digital ISBN Crown copyright 2013 WG17272

3 Contents Section 1: Introduction 6 Whistleblowing 9 Section 2: The legal framework 11 Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations Schools without a delegated budget 16 School staff employed by the LA 16 School staff employed by an agency 16 Staff not engaged through an agency of LA 17 Section 3: Training on staff disciplinary procedures 19 Section 4: Fair procedures and impartiality 21 Fair penalties 23 Section 5: The staff disciplinary and dismissal and disciplinary and dismissal appeals committees 25 Review of membership and remit of the committees 25 Section 6: Role of the chair of governors 28 Section 7: Lesser misconduct 29 Informal discussion with the headteacher and/or line manager 29 Stage 1 Formal process for lesser misconduct 30 Investigation 30 Stage 2 Lesser misconduct (a case to answer) disciplinary hearing with the headteacher or chair of governors 31 Stage 3 Action following disciplinary hearing before the headteacher/chair of governors 33 Stage 4 Appeals against formal action 35 Allegations of lesser misconduct against the headteacher 36 Consideration under procedures for gross misconduct 36 Section 8: Gross misconduct 37 Involvement of the governing body 37 Allegations of criminal behaviour to be referred to the police 38

4 Investigation by the police 38 Action by the governing body 39 Allegations of gross misconduct against the headteacher 40 Section 9: Stages of the procedure for considering allegations of gross misconduct 41 Receipt of allegation of gross misconduct 41 The investigation 41 Conduct of the investigation 42 Suggested framework for the investigation report 44 Interviewing a member of staff 45 Interviewing witnesses 46 Record of interviews 46 Outcome of investigation for allegations other than child protection 46 Section 10: Procedures for handling child protection allegations 49 Receipt of allegation 49 Referral to the statutory authorities 50 Role of the statutory authorities 51 Referral for independent investigation 52 Appointment of an independent investigator for child protection allegations against school staff 53 The role of the investigator 55 Sharing of information 56 The investigation and the subsequent decision-making process 56 Appointment of independent non-governor member on staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee 58 If the allegation is withdrawn 59 Anonymous allegations 60 Malicious/false allegations 60 Section 11: Disciplinary hearing 61 A case to answer 61 Arranging the hearing 61 Provision of written documents 62 Attendance and advice of chief education officer and diocesan representative 62 Attendance and advice of the headteacher 63 Role of the advisor 63 Role of the presenting officer 63 Role of the committee chair 64 Role of committee members 64

5 Role of the companion or union representative 65 Role of the clerk to the committee 65 Hearing procedure 67 Decision reached after the hearing has taken place 68 Disciplinary hearing appeal 70 Absence due to illness 71 Resignation of a member of staff 72 Review 72 Section 12: Suspension 73 Use of suspension 73 Suspension interview 74 Section 13: General issues 76 Governing body access to information 76 Sharing information 76 Key Principles of Information Sharing adapted from Safeguarding Children in Education April 2008 refer to Appendix F of Circular 05/ Membership of staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee 77 Governing body access to independent advice 79 Written records of proceedings, including records of governing body meetings 80 Annex A: Matters outside the scope of the staff disciplinary procedures 82 Grievance procedures 82 Complaints 83 Capability procedures 84 Whistleblowing 84 Annex B1: Examples of lesser misconduct behaviour 85 Lesser misconduct 85 Annex B2: Examples of gross misconduct behaviour 86 Gross misconduct 86 Annex C: Guidance and other documents relevant to staff disciplinary procedures 88 Reference material related to child protection 89 Key definitions and concepts 89 Annex D: Supply of information 92 Information to be supplied by an employer 93

6 Annex E: Flow chart for lesser misconduct and gross misconduct 94 Annex F: Suggested timescales for hearings (in school days) 96 Annex G: Checklist for disciplinary hearings 100 Annex H: Independent Investigation Service 101 Annex I: Model staff disciplinary procedure for maintained schools 102 Annex J: Model letters that can be used during the disciplinary process 125 Letter (i): Sample letter inviting a member of staff to attend an investigation meeting in respect of lesser or gross misconduct allegations 125 Letter (ii): Sample letter inviting a witness to attend an investigation meeting in respect of lesser or gross misconduct allegations 126 Letter (iii): Sample letter to a witness to request their attendance at a disciplinary hearing for either lesser or gross misconduct 127 Letter (iv): Sample letter to member of staff to request their attendance at a disciplinary hearing for either lesser or gross misconduct 129 Letter (v): Sample letter for lesser misconduct conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher), notice of final written warning 130 Letter (vi): Sample letter for lesser misconduct conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher) 131 Letter (vii): Sample letter for lesser misconduct notice of appeal hearing with the staff disciplinary and dismissal appeals committee 132 Letter (viii): Sample letter conclusion of an appeal before a disciplinary appeal hearing against a training and development/verbal/written warning given by the headteacher/chair of governors 134 Letter (ix): Sample letter for gross misconduct notice of a disciplinary hearing before the staff disciplinary and dismissal committee 135

7 Letter (x): Sample letter for gross misconduct conclusion from a disciplinary hearing with the staff disciplinary and dismissal committee 137 Letter (xi): Sample letter for gross misconduct notice of appeal hearing before the staff disciplinary and dismissal appeals committee 139 Letter (xii): Sample letter for gross misconduct conclusion of the appeal hearing against warning/dismissal 141 Letter (xiii): Sample letter for gross misconduct confirming suspension from duty 142

8 Section 1: Introduction 1.1 This document provides advice and guidance on a range of issues that form part of the school staff disciplinary/dismissal process. In accordance with sections 35(8) and 36(8) of the Education Act 2002, governing bodies must have regard to this guidance and the model staff disciplinary and dismissal procedure. Issues covered include: the legal framework the constitution, membership and establishment of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee procedures for dealing with lesser and gross misconduct allegations and behaviour procedures for dealing with allegations that involve issues of child protection including independent investigation investigation of allegations use of suspension conduct of disciplinary/dismissal proceedings the appeals process if required governing body action when a staff member resigns governing body access to information and independent advice governing body training notification under the Education (Supply of Information) (Wales) Regulations 2009 for all staff dismissals a model staff disciplinary procedure as found in Annex I. 1.2 The Acas Code of Practice 1 Disciplinary and grievance procedures 1 points out that disciplinary procedures are necessary for promoting orderly employment relations and achieving fairness and consistency in the treatment of individuals and to minimise disagreements about disciplinary matters. The Acas Code encourages the agreement of disciplinary procedures between employers and employee representatives, so that they become part of contracts of employment

9 1.3 A school governing body is required to adopt procedures to regulate the conduct and discipline of all staff at the school that are paid from the school s delegated budget which includes: teachers support staff such as teaching assistants office staff caretakers laboratory technicians learning support assistants any other member of staff so paid. However, this does not include: agency staff not employed under a contract of employment to work at the school and not funded by the school s delegated budget either staff employed by a private contractor or self-employed supply staff who are engaged under a contract for services staff whose contract of employment is held by another body (e.g. teaching staff shared with the school in question via the collaborative process) staff employed by the local authority (LA) and paid by the LA (not from the school s delegated budget) such as school meals staff, gardeners, etc. staff in a school with a delegated budget where an Interim Executive Board (IEB) has been established, as the IEB may adopt such reasonable procedures it deems appropriate (including the procedures in this guidance). These persons are outside the scope of these procedures. The governing body is required to establish two committees, namely a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee The Government of Maintained Schools (Wales) Regulations 2005 regulation 55(1)(i) states that a decision to terminate the employment of any person employed by the LA to work at the school must be delegated to the staff disciplinary and dismissal committee. 3 The Government of Maintained Schools (Wales) Regulations 2005 regulation 55(1) (ii) states at a foundation, voluntary aided or foundation special school, the initial decision that a person employed to work at the school should have his or her contract of employment with the governing body terminated or should not have his or her contract renewed (except where the dismissal is pursuant to a direction of local education authority under section 55(5) of the 1998 Act. This function must be delegated to a committee known as the staff disciplinary and dismissal committee. 7

10 8 1.4 The purpose of this guidance is to provide advice to governing bodies and headteachers on handling staff disciplinary matters in relation to conduct issues. This guidance also includes a model staff disciplinary and dismissal procedure at Annex I. It is not possible to address every eventuality which may arise and this guidance is not a substitute for legal or other advice relevant to individual circumstances. 1.5 In accordance with sections 35 and 36 of the Education Act 2002, this guidance is statutory and the Welsh Government expects all LAs and schools to review, in consultation with the recognised trade union representatives, their agreed disciplinary/dismissal policy and procedure against the guidance in this document on receipt of this guidance. In the event of a challenge to any part of the disciplinary process, a governing body will need to be able to demonstrate that it has had regard to this guidance and has either followed it and adopted the model procedure or amended their own staff procedure to take account of this guidance, or has a sound justification for not doing so. It is also recommended that the governing body also have regard to the Acas Code of Practice 1 Disciplinary and grievance procedures. 1.6 The Welsh Government acknowledges that all LAs have model disciplinary procedures in place and recognises that there are differences between them. This guidance and model procedure will provide a consistent and coherent approach to staff disciplinary issues in schools across Wales. If a governing body chooses to follow policies or procedures provided by another party such as the LA or a diocesan authority, it must formally adopt such procedures as its own. This decision must be clearly minuted by the clerk and recorded in the minutes of the governing body meeting. This will ensure that school staff and their school union representative are absolutely clear of the model disciplinary policy that will be followed should it be required. If governing bodies choose not to follow their own agreed procedure this could result in the matter being referred to an employment tribunal. It is important that governing bodies adhere, wherever possible, to the timescales set out in their own agreed disciplinary procedures. The Welsh Government has suggested an overall time frame for the lesser misconduct and gross misconduct processes in Annex F. Governing bodies are free to adopt these timescales as part of their own agreed disciplinary procedures if they wish. However it is not appropriate during a disciplinary process for

11 governing bodies to switch between their own agreed timescales and the ones set out in Annex F. 1.7 Once the governing body has agreed to formally adopt a staff disciplinary/dismissal procedure, it becomes the governing body s responsibility to ensure compliance with the procedure and with statutory regulations in Wales. Governing bodies should therefore carefully consider the contents of such a procedure to ensure that it is suitable to meet the needs of the school, before formally adopting it. Consultation on any alternative procedure must take place, in good time, prior to formal adoption, with relevant parties and recognised trade unions. 1.8 As a matter of good practice governing bodies should regularly review their policies and procedures. The trade unions recognised by the LA and the governing body must be consulted in good time on any proposed changes to existing staff disciplinary procedures or guidance. 1.9 The principles of natural justice and the requirements of employment mean that the disciplinary procedures the governing body has adopted must be made known to all staff and must be clear and detailed. This is to ensure that all parties know what the arrangements are and to reduce the risk of bias or unfairness. Whistleblowing 1.10 A whistleblowing procedure is specific and is essentially about employment issues for employees. It should be separate and distinct from other procedures that a governing body has in place for complaints, including complaints involving pupils, staff performance and capability, staff grievance and staff discipline. 9

12 1.11 A governing body needs to recognise that the decision to whistleblow can be a difficult one for members of staff but that it is in the long-term interests of the school that concerns are addressed. Governing bodies should foster a culture where all staff members feel able to raise concerns, although it is important that staff are aware of the legal requirements surrounding whistleblowing Statutory protection is provided to whistleblowers by the Public Interest Disclosure Act 1998 (PIDA). The PIDA provides protection to employees in circumstances where their disclosure can be classed as a protected disclosure. In brief, a protected disclosure is one that is: a qualifying disclosure made in accordance with sections 43C to 43H of the PIDA Detailed guidance on whistleblowing including a model policy for governing bodies can be found in Procedures for Whistleblowing in Schools and Model Policy Welsh Assembly Government Circular No: 36/2007 (2007). 10

13 Section 2: The legal framework 2.1 The main legal provisions relating to staffing, disciplinary and conduct matters are contained in: the Employment Rights Act 1996 the Employment Relations Act 1999 sections of the Education Act 2002 the Staffing of Maintained Schools (Wales) Regulations (referred to as the 2006 staffing regulations in this document) the Staffing of Maintained Schools (Miscellaneous Amendments) (Wales) Regulations ; (referred to as the 2007 staffing amendment regulations ) the Government of Maintained Schools (Wales) Regulations (referred to as the 2005 school government regulations ). 2.2 The 2005 school government regulations require governing bodies to establish a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee. In accordance with regulation 55 7 the function of the staff disciplinary and dismissal committee is to determine whether a person: employed by the LA to work at the school should cease to work there (community, voluntary controlled or community special schools) should have their contract of employment terminated or not have it renewed (voluntary aided and foundation schools) and to hear representations in relation to such matters. The function of the staff disciplinary and dismissal appeals committee is to hear appeals in respect of such decisions. Both committees must be clerked in accordance with the 2005 school government regulations. Wherever possible, the clerk to the governing body should clerk the disciplinary and dismissal committees unless, due to the sensitive nature of disciplinary proceedings, the governing body may wish to appoint a clerk who is not a member of staff at the school. It is the responsibility of the governing body to appoint a clerk and LAs should not impose a clerk on a governing body. Whoever is clerk should be discrete, competent and trained. Further information on the role of the clerk can be found in Section 11, paragraphs (Regulation 55) 11

14 In accordance with the 2006 staffing regulations and the 2007 amending staffing regulations, governing bodies are responsible for the conduct and discipline of school staff, and any procedures for giving members of staff opportunities for seeking redress of any grievances relating to their employment. However, sections 35(7) and 36(7) of the Education Act 2002 state that if a school does not have a delegated budget then staff disciplinary and dismissal issues are the responsibility of the LA who are required to have a procedure in place for dealing with staff disciplinary and dismissal matters. 2.4 The governing body must also delegate responsibility for considering appeals against decisions of the staff disciplinary and dismissal committee to a separate disciplinary and dismissal appeals committee 8. In lesser misconduct cases the disciplinary and dismissal appeals committee will also hear appeals against decisions made by the headteacher in respect of members of staff and decisions of the chair of governors in respect of headteachers. 2.5 Under regulation 55(3) of the 2005 school government regulations each committee must be made up of at least three governors. Having an odd number of governors on each committee will avoid the need for the chair of the committee to have a second or casting vote. In any event the Welsh Government suggests the maximum number of governors should be no more than five on each committee. Governors who have a conflict of interest or who are tainted may not be members of either committee. See Sections 4 and 5 for further advice. The disciplinary and dismissal appeals committee cannot have fewer governors than the staff disciplinary and dismissal committee. The same persons must not be members of both committees. Further information on tainting can be found in Section 5 (paragraphs ) and Section 13 (paragraphs ). Should governing bodies decide to have a larger number of governors on the staff disciplinary and dismissal committee they must keep in mind that they will need to find the same number of untainted governors for the staff disciplinary and dismissal appeals committee. 2.6 The headteacher cannot be a member of any committee or appeals committee dealing with staff disciplinary or dismissal matters, although the headteacher can attend meetings and disciplinary hearings to give advice, present the case against the member of staff or give evidence. The headteacher cannot attend any meetings or hearings to give advice or present a case where if they are the subject 8 (Regulation 55(2))

15 of the allegation or a witness. In order to not compromise members of staff, the Welsh Government suggests that teacher/staff governors should not be members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee. Teacher/staff governors may attend hearings as the subject of an allegation or to give evidence. Any governor who is suspended from the governing body should also not be a member of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee 9. An associate pupil governor may not attend any meetings or hearings of either committee. In exceptional circumstances, for gross misconduct matters that do not involve child protection issues, non-governors may be members of either committee but they cannot vote in any of the proceedings 10. A non-governor could include a person who is a governor at another school, as non-governor in this context means a person who is not a governor at the school where the allegation has been made. 2.7 For allegations that involve issues of child protection against a member of the school staff which may lead to disciplinary proceedings there are two additional requirements for governing bodies of all categories of schools that have a delegated budget: the governing body must appoint an independent investigator, and have the allegation independently investigated prior to any disciplinary/dismissal hearing (regulation 7 of the 2006 Staffing regulations) the membership of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee must include at least two governors and an independent non governor member with voting rights (regulation 55 of the school government regulations). The membership of the committees must not overlap. Further information on handling child protection allegations can be found in Section An associate pupil governor may not attend any meetings or hearings of either committee (Regulations 54(7) and 54(8)) 13

16 14 Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations The LA is the employer of staff in community, community special, voluntary controlled and maintained nursery schools, but governing bodies of these schools are also treated as the employer of staff in respect of certain employment functions in cases where the school has a delegated budget 11. In addition, if there is a claim for unfair dismissal the governing body will be the respondent and not the LA. A representative of the LA is entitled in law to attend staff disciplinary and dismissal committee meetings to ensure that the correct process has been followed and to give advice to the governing body. The governing body should have regard to that advice but retains ultimate responsibility for any decision taken. 2.9 Where schools have a delegated budget both the governing body and the headteacher have the power to suspend staff. Both the headteacher and the governing body (usually the chair of governors in the latter case) must inform one another and the LA when they have suspended a member of staff. However, only the governing body (or its delegate) can end a suspension 12. If the governing body ends a suspension it must immediately inform the LA and the headteacher. In accordance with regulation 50 of the 2005 school government regulations, governing bodies may delegate the suspension function to a governor or a committee. Pragmatically, this would be either the chair of governors or the chair of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee. The decision to delegate this function must be minuted. Any suspension under the 2006 staffing regulations must be without loss of emoluments (salary) Where the governing body has determined that a member of staff employed to work at the school should cease to work there, they must notify the LA in writing of its decision and the reasons for it. The governing body must give the member of staff the opportunity of appealing against their decision to dismiss them before notifying the LA of its decision. If the member of staff concerned works solely at the school and does not appeal, the LA must, within 14 days of receiving notification from the school, give that person notice terminating their contract of employment as required under the 11 (part 2) 12 (Regulation 16) and Section 12 (concerning suspension) of this guidance.

17 contract, or terminate the contract without notice if the decision is to summarily dismiss the member of staff. Resignation of a member of staff during the disciplinary process is covered in Section 11, paragraph If the member of staff is not employed solely to work at the school, the LA must require the member of staff to cease to work at the school. The Welsh Government strongly recommends that a governing body seeks advice from the HR department of the LA or equivalent advice from another source before suspending an individual. Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations The governing body is the employer of most staff in foundation and voluntary-aided schools, and is therefore responsible for the conduct and discipline of the staff employed to work at the school. Regulations of the 2006 staffing regulations sets out the framework for suspension and staff disciplinary and dismissal arrangements at such schools. Governing bodies of these schools are also required to appoint an independent investigator to investigate child protection allegations and an independent non-governor member (who has voting rights) to the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee, for all allegations that involve issues of child protection. These must be different persons Where schools have a delegated budget both the governing body and the headteacher have the power to suspend staff. Both the headteacher and the governing body (usually the chair of governors in the latter case) must inform one another and the LA when they have suspended a member of staff. However, only the governing body (or its delegate) can end a suspension 13. If the governing body ends a suspension it must immediately inform the LA and the headteacher. In accordance with regulation 50 of the 2005 school government regulations, governing bodies may delegate the suspension function to a governor or a committee. Pragmatically, this would be either the chair of governors or the chair of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee. The decision to delegate this function must be minuted. Any suspension under the 2006 staffing regulations must be without loss of emoluments (salary) (Regulation 16) and Section 12 (concerning suspension) of this guidance. 15

18 16 Schools without a delegated budget 2.13 In relation to any category of school that does not have a delegated budget the LA is responsible for suspension, staff discipline and dismissal in accordance with Part 1 of Schedule 2 to the Education Act This means that neither the 2006 staffing regulations, which establishes a framework for staffing matters, nor the 2007 staffing amendment regulations apply to staff at these schools. This also means that the specific requirements in those regulations in relation to child protection allegations considered to be gross misconduct will not apply. (These requirements are set out in paragraph 2.7.) School staff employed by the LA 2.14 Subject to paragraph 2.15, where the LA directly employs staff to work at a school, such as school meals staff or centrally employed teaching staff and staff such as, for example, inclusion services staff, music support services staff, and literacy and numeracy tutors, the LA is responsible for the discipline, suspension and dismissal of such staff 14. Before exercising any of these functions, the authority must consult the governing body of the school at which the member of staff concerned works about the issues, to such extent as the authority thinks fit However, if the governing body determines that such a person should cease to work at the school they must notify the authority of that fact and the reason for that determination. They may also ask the person to immediately leave the school premises. The authority must then require the person to cease working at the school. If the allegation involves matters relating to child protection, the headteacher, LA-designated child protection officer and chair of governors should refer the matter to the statutory authorities. School staff employed by an agency 2.16 Where an agency directly employs staff to work at a school such as supply teachers, and the agency holds the contract of employment, the headteacher should notify the agency immediately that its employee is no longer employed to work at the school and has been asked to leave the school premises and the reason for this decision. This is because the agency is responsible for the discipline, dismissal and suspension of its own staff. Before exercising any of 14 (Regulation 18).

19 these functions, the agency should consult the governing body of the school at which the member of staff concerned works on the issues to such extent as the agency thinks fit In summary, if a gross misconduct allegation is made against one of these members of staff, the following should happen: the matter should be reported to the agency the headteacher should consider whether the member of staff should leave the school premises the agency should be informed that the individual is no longer required to work in the school. This is not a dismissal or a termination of contract by the school as the contract is held by the agency. The school will need to provide the agency with their reasons for taking this decision the agency should inform the governing body of the school at which the member of staff works before carrying out any suspension or disciplinary/dismissal action While in law there is no role for a governing body to become involved in disciplining a member of staff employed by an agency, the Welsh Government is aware of concerns that the agency may not have a similar disciplinary procedure in place. The Welsh Government has no objections to this guidance or the model policy being shared with the agencies for information purposes. Staff not engaged through an agency or LA 2.19 Some schools engage staff for supply work using school staff online networks. This is where persons who are qualified teachers register online to be available, often at short notice, to cover supply work. Other schools may hold a list of such persons, who live locally, who have expressed an interest in being engaged for supply cover. As well as ensuring these persons have a valid Criminal Records Bureau check when they are taken on, governing bodies and headteachers will need to consider whether such persons are engaged under a contract of employment. If this is the case the governing body would be responsible for conducting any disciplinary proceedings provided the school has a delegated budget. Therefore, the guidance in this document applies to those staff. 17

20 2.20 However, where those persons are self-employed, that is, those not employed under an employment contract but under a contract for services, the governing body is not responsible for conducting disciplinary proceedings. Should a school receive child protection allegations against such a person, the school should consider whether the member of staff should be asked to leave the school premises. Governing bodies should carry out an assessment of the circumstances leading to the allegation, i.e. when and where it took place, any witnesses, and consider, after seeking advice from the designated child protection officer in the school and LA, whether a referral to the statutory authorities is required Once the statutory authorities have completed their consideration of the matter the governing body, with support from the LA, should carry out their own investigation into matters. Such an investigation would not involve the use of the Welsh Government s IIS as it is outside of the scope of that service. Instead the investigation could be carried out by a senior member of staff in the school, the headteacher, a governor or a member of the LA. The governing body should inform the person of the outcome of the investigation. If there is evidence to support the allegation the school should inform the person that they will not be using them again. The governing body and LA will also need to take advice about the sharing of information with other schools that may also use the services of the person against whom the allegation has been made, taking into account the need to comply with data protection requirements Whether a person is an employee or self-employed is often difficult to determine and all the circumstances must be considered. Where there is any doubt on this point governing bodies should seek independent legal advice. In the first instance it would be appropriate for the governing bodies to contact the legal department of its relevant LA. 18

21 Section 3: Training on staff disciplinary procedures 3.1 Disciplinary matters must be handled in accordance with the law and the principles of natural justice. Cases can be extremely complex. Governors who are members of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee can feel unprepared when dealing with staff disciplinary matters, especially where the outcome may possibly result in a member of staff being dismissed. 3.2 All governors should undertake timely and relevant training on staff disciplinary matters. Governors who are members of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee should also receive refresher training in more detail, when they have been made aware that they will have to deal with a disciplinary matter. Clerks to governing bodies, headteachers and staff should be included in this training. 3.3 By law, LAs 15 are required to provide training for governors free of charge on a range of issues which will help them discharge their functions and responsibilities effectively and as considered necessary and appropriate. It is very likely therefore that your LA will already have a training programme in place covering staff disciplinary issues. Governors should contact their LA for details. 3.4 Training for governors, clerks, headteachers and staff should cover: Guidance Circular No: xx/2013 relevant legislation, i.e. employment and education legislation, Acas Code of Practice 1 Disciplinary and grievance procedures, equal opportunities legislation, Equalities Act 2010, data protection, Freedom of Information requests and case law essential features and principles of effective and fair governing body procedures how to carry out an investigation conduct of a disciplinary interview or hearing skills and techniques for questioning confidentiality impartiality child protection matters whistleblowing record keeping 15 At the time of publication this duty was still in section 22 of the Education Act

22 notification to the General Teaching Council for Wales (GTCW) where appropriate, and the Independent Safeguarding Authority (ISA) which is being replaced by the Disclosure and Barring Service (DBS). 3.5 Training on staff disciplinary and dismissal issues is not mandatory. However, in order to give governors a better understanding of the disciplinary process and their role, the Welsh Government s expectation is that the governing body should ensure that members of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee receive appropriate and timely training. Waiting until a disciplinary case arises is too late and may cause unnecessary delays in the disciplinary process. 20 Guidance Circular No: xx/2013

23 Section 4: Fair procedures and impartiality 4.1 A governing body must reach decisions in a procedurally fair way. A person against whom allegations are made has the right to a fair hearing. Accordingly the headteacher, chair of governors and governing body must follow the procedures they have adopted. Under any procedures the initial letter informing the member of staff that disciplinary action is to be taken should: inform the member of staff of the allegation against them at the earliest opportunity, and provide any supporting evidence state the possible sanctions that could apply if the allegation is upheld state the member of staff s rights under the terms of the school s staff disciplinary procedure, including the right to representation provide opportunity for the member of staff to obtain their own advice and representation to enable them to prepare their response to the allegations and for any disciplinary hearing include details of membership of the staff disciplinary and dismissal committee and disciplinary and dismissal appeals committee and afford opportunity to object to any member of either committee on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case noting the reasons why provide the member of staff with a copy of the relevant policies. The Welsh Government suggests that this list is used as a template for all such letters. 4.2 In order to protect the integrity and impartiality of the governors who are members of the staff disciplinary and dismissal committee, any objection to the membership should be made to the chair of governors. It would be for the chair of governors (subject to delegation of this responsibility to them by the governing body) to make a decision as to whether the objection is valid; the chair of governors may discuss the matter with the LA and should take account of the advice received. If the objection is accepted, the chair of governors may contact governors on a reserve list previously agreed by the governing body in priority order. The chair should inform those involved who the substitute would be. The decision of the governing body to allow the chair to take the decision regarding the objection and to choose a substitute from a reserve list agreed by the governing body should be clearly minuted. 21

24 Members of the committees must be impartial and unbiased and must address the issues objectively and independently, giving due proper and equal consideration to the representations from all parties 16. Under regulation 63(2) of the 2005 school government regulations 17 a governor must declare any interests they may have and withdraw from the meeting without voting if there is a conflict of interest or reasonable doubts about their ability to act impartially, or if they have a pecuniary interest. Where there is dispute about these matters the other governors present at the governing body or committee must vote to decide the issue (regulation 63(5) of the 2005 school government regulations applies). If a member of the staff disciplinary and dismissal committee withdraws after declaring an interest they should be replaced. If this declaration is made at a governing body or staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee meeting, it is the responsibility of the governing body or committee members to decide who the replacement should be. However, if a governor notifies the chair of governors of any conflict of interest outside of a meeting, the chair may seek an alternative governor to be a member of the staff disciplinary and dismissal committee from the priority list agreed by the full governing body, provided the governing body has delegated authority to the chair to do so see Section 5 paragraphs 5.4 and No governor must take part in deciding appeals against their own decisions. Accordingly, regulation 55(6) of the 2005 school government regulations 18 prohibits members of the staff disciplinary and dismissal committee from taking part in the proceedings of the staff disciplinary and dismissal appeals committee. 4.5 Cases should only be discussed by members of the staff disciplinary and dismissal and the staff disciplinary and dismissal appeals committees as part of the proceedings of those committees. When the chair reports progress on a staff disciplinary matter to the governing body the information the governing body should receive is that the case is being, or has been, dealt with in the appropriate manner in accordance with school procedures. If other detailed information is revealed the chair s report could generate questions from governors and subsequent discussion. Should this happen the chair should stop the discussion immediately. Should the discussion continue then the governing body could put themselves at risk as members of the staff disciplinary and dismissal committee and the 16 The Seven Nolan Principles of public life (Regulation 63(2)) 18 (Regulation 55 (6))

25 staff disciplinary and dismissal appeals committee may be present and would be tainted. If this happens and the member of staff decides to refer the case to an industrial tribunal then the governing body may be in some difficulty in defending its actions. Members of the governing body must at all times treat all information they receive relating to allegations against members of staff with the utmost confidentiality. 4.6 Other governors who have knowledge of the evidence or potential evidence must not discuss the case with fellow governors. If any of the members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee were involved in such a discussion, they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance, and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal being upheld by an Employment Tribunal, which could have possible financial implications for the school s delegated budget as it may have to bear the costs. 4.7 In addition to the statutory requirements on governing bodies outlined above, the whole disciplinary process must be seen to be fair, reasonable and give expression to the principles of natural justice, to ensure that the staff disciplinary and dismissal committee s consideration and final assessment of the facts is considered, reasonable and justified. A fair process also helps to safeguard the member of staff in what will invariably be a stressful time for the person concerned. 4.8 The principles of natural justice demand that decisions should be taken in an impartial and balanced way after taking into account all available information, including representations from the member of staff and their union representative, witnesses, which could include children, and witness statement(s) and the person presenting the case against the member of staff (refer to Section 5 paragraphs and Section 13 paragraphs for additional information on tainting). Fair penalties 4.9 It is recommended that governors and headteachers consider Discipline and grievances at work: The ACAS guide. For ease of reference extracts from the text of page 27 of that document follow. 23

26 When deciding whether [and what] disciplinary penalty is appropriate and what form it should take, consideration should be given to: whether the rules of the organisation indicate what the likely penalty will be as a result of the particular misconduct whether standards of other employees are acceptable, and that this employee is not being unfairly singled out the employee s disciplinary record (including current warnings), general work record, work experience, position and length of service any special circumstances which might make it appropriate to adjust the severity of the penalty whether the proposed penalty is reasonable in view of all the circumstances whether any training, additional support or adjustments to the work are necessary; and any representation made by the employee or on his behalf in relation to possible sanctions. These factors should only be considered for the purpose of deciding whether a disciplinary penalty is appropriate after the decision on the merits of a case has been taken. Governors should not take any of the factors listed above into account when considering or determining a case. 24

27 Section 5: The staff disciplinary and dismissal and disciplinary and dismissal appeals committees Review of membership and remit of the committees 5.1 Governing bodies should establish and review the membership of their committees at least annually. It is good practice for this to be done at the first governing body meeting of the school year. The names of the governors identified to be members of both committees should be recorded in the governing body minutes. Membership of these committees also needs to be checked at the start of each case so that any governor who is tainted or otherwise compromised, e.g. has demonstrated partiality or has an interest in the case, is replaced. Examples of where a governor may be tainted include where a governor: is the subject of the allegation(s) under consideration is related to the member of staff against whom an allegation of misconduct has been made or has a close relationship with any of the parties involved has a pecuniary interest has demonstrated that they cannot fulfil their role impartially, e.g. has been a member of the staff disciplinary and dismissal committee that heard the original complaint which is now the subject of an appeal, or has indicated that they have predetermined the matter is a person who instigates the allegation is the subject of complaints or grievances or has prior involvement in the allegation or events leading up to the allegation. 5.2 If the member of staff facing disciplinary action, or their union representative, can demonstrate that there are reasonable doubts about the impartiality of a member of either committee, the governing body should replace the governor, unless there are other overriding considerations, e.g. there may be insufficient impartial governors to make up the required three. Refer to Section 13 (paragraphs ) for more information on issues around impartiality and to Section 4 regarding how an objection to a committee member could be raised. 25

28 Knowledge that an allegation has been made and knowledge of the nature of that allegation does not affect impartiality provided that a governor does not hear or read any of the evidence other than as part of the hearing arrangements and as a member of the staff disciplinary and dismissal or staff disciplinary and dismissal appeals committees. The governing body and individual governors must not discuss a disciplinary case. Cases should only be discussed by members of the staff disciplinary and dismissal and staff disciplinary and dismissal appeals committees as part of the proceedings of those committees. To mitigate any risk to the confidentiality and fairness of the disciplinary process other governors who have knowledge of the evidence or potential evidence must not discuss the case with fellow governors or anyone else. If any of the members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committees were involved in such a discussion, they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal by a dismissed member of staff being referred to and upheld by an employment tribunal with potential consequences for the school s delegated budget. 5.4 Where other governors have to be identified to replace any of those initially agreed by the governing body, this decision should be taken by the whole governing body. This could result in the governing body being called together quickly, using the emergency procedures, in order to avoid delays in the disciplinary process. 5.5 There are alternative pragmatic arrangements that governing bodies may wish to consider putting in place to cater for such an eventuality. Governing bodies could identify reserve governor members, in a priority order, at the time the committees are set up to cater for such an eventuality, i.e. conflicts of interests, illness and holiday commitments. This would allow the chair to contact replacement governors in a priority order. These arrangements must be clearly minuted, including the decision to allow the chair of governors to contact the reserve governors. Alternatively, the governing body could decide that if any member of the staff disciplinary and dismissal committee is tainted and unable to act, the governors identified to be the staff disciplinary and dismissal appeals committee should take over the role of the staff disciplinary and dismissal committee (provided they are not tainted). This could