Performance Management
A Golden Opportunity for Schools to Change
Revising performance management and capability procedures for teachers. A golden opportunity for maintained schools, Academies and other schools.
Dealing with performance management and capability can leave some schools feeling like Sisyphus – forever condemned to the task of pushing a boulder uphill, for no discernible reason and with no likely positive outcome on the horizon.
However, Regulations introduced last September provide important opportunities for maintained schools and, at the same time, a timely reminder for Academies and other schools. The key for maintained schools will be not to squander the opportunity that has arisen and, instead, to grasp it with both hands to adopt streamlined performance management and capability procedures. In other words, use the opportunity to make these procedures work for the benefit of the school and its pupils, to deal effectively with under-performance, rather than allow the procedures to act as an encumbrance that stifles development.
Academies and other schools should review their procedures, to ensure that they have not allowed themselves to remain burdened by drawn out and bureaucratic procedures.
Seizing the Opportunity
It appears that LEA’s are encouraging schools to stay with similar policies and procedures to the ones that have traditionally been used. We believe that now is the time to consider a new approach
But first, let’s take a look at the conditions that have enabled us to put this together and provided schools with this opportunity:
What are the new Regulations?
From September 2012, the new Teachers’ Standards came into force and the Department for Education issued new regulations (the Education (School) Teachers’ Appraisal (England) Regulations 2012) requiring all maintained schools to adopt written appraisal policies, setting out an annual appraisal process for their teachers, and to henceforth assess all teachers’ performance against their specific role objectives and the Teachers’ Standards.
What are the new Teachers’ Standards?
The Teachers’ Standards replace the previous standards of Qualified Teacher Status (“QTS”) and the Core Professional Standards, previously published by the Training and Development Agency for Schools. The new Standards apply to all teachers, regardless of their career stage, and define the minimum level of practice expected of teachers from the point of being awarded QTS onwards.
The pre-amble to the Standards summaries the values and behaviour that all teachers must demonstrate throughout their careers:
“Teachers make the education of their pupils their first concern, and are accountable for achieving the highest possible standards in work and in conduct. Teachers act with honesty and integrity; have strong subject knowledge, keep their knowledge and skills as teachers up-to-date and are self-critical; forge positive professional relationships; and work with parents in the best interests of their pupils.”
The Standards then go on to specify in ‘Standards for Teaching’ Part (1) and ‘Standards for Professional and Personal Conduct’ in Part (2).
What changes are needed to appraisal and capability procedures?
The Department for Education has made it clear that the 2012 Appraisal Regulations are designed to simplify and enhance the management of under-performing teachers, highlighting that the previous capability procedures were often ineffective because they required duplication where support and assessment had already been provided, and were prone to stall indefinitely, because of sickness absence or the commencement of grievance procedures by the teacher.
The new regulations have made a number of key changes, where there are concerns about a teacher’s performance. In particular:
- There is no longer an informal stage in the capability procedure;
- The suggested length of the monitoring and review period, following a first warning, has been reduced in length from 20 weeks to between 4 to 10 weeks;
- Performance management must now be assessed against the teachers’ role objectives and the Teachers’ Standards, rather than those factors being a “back-drop” to performance management, which the Department for Education believe downplayed their significance as the national benchmark of what is expected of teachers; and
- The previous limit on classroom observation (3 hours per annum) has been removed, so there is no longer any limit on the amount of time that schools may spend observing teachers in the classroom.
The DfE Model Policy
In parallel with implementing the new Teachers’ Standards, the Department for Education has issued a model policy for schools for conducting teacher appraisal and capability procedures. The 2012 Appraisal Regulations provide a legal national framework within which maintained schools must operate and the model policy is designed to provide a resource for schools to refer to in developing their own policies.
Academies and Other Schools Outside of the Maintained Sector
The new regulations do not have mandatory force in respect of Academies and schools outside of the maintained sector. However, given the focus of the Regulations on improving pupil progress, most schools will want to adopt appraisal and capability procedures that broadly mirror the framework set out in the regulations.
How have local authorities responded to the 2012 Appraisal Regulations?
The Department for Education’s consultation paper, ‘Proposed Changes to Performance Management and Capability Arrangements’, noted:
“Informal feedback suggests that advice and support provided by Local Authorities to schools who are tackling poor performance is variable.”
A review of a typical local authority’s model Performance Management Policy and Capability Procedure offers some insight into why schools may find it difficult to tackle poor performance. Even those policies that have been revised, following the new regulations coming into force, contain obvious barriers to the effective tackling of poor performance. For example:
1. In setting objectives for teachers during the appraisal process, the procedure may require the school to have regard to the employee’s reasonable expectations in the context of work/life balance. While schools are required to have regard to teachers’ work/life balance when setting objectives, that is within the context of the Working Time Regulations, which specify minimum rest and holiday periods and a maximum average of 48 hours of work per week calculated over a 17 week period (unless the employee chooses to exceed them), which are requirements that most teachers comfortably sit within.
By highlighting the requirement in performance management procedures, teachers who are being performance managed (and their representatives) are likely to rely upon a subjective interpretation of whether the objectives the teacher was set (and which they are failing to achieve) were reasonable in the context of their work/life balance. It is also likely to result in inconsistent interpretations of the requirement by those managing teachers’ performance.
This can lead to arguments, at every stage of the performance management process, that the objectives set for the teacher were unreasonable in the context of their work/life balance, causing the performance management process to be disrupted and encouraging appeals and grievances to be lodged by the teacher, with resulting delays and confusion.
It is also likely to encourage sickness absences, said to be triggered by an unreasonable level of expectation having been placed upon the teacher or because of the delay in completing the process.
2. Local authority procedures may introduce unnecessary stages in the procedure, before a teacher’s under-performance can be referred to the formal Capability Procedure.
Most appraisal policies will provide for concerns about the teacher’s performance to be identified and then for the required improvements to be set out, together with any support that will be provided to the teacher in the form of further training and/or coaching, with formal monitoring and reviews over a set period of time. However, rather than moving straight to the Capability Procedure if the teacher does not demonstrate the required improvement during the monitoring and review period, some local authority procedures then require a further meeting to be held (at which the teacher is entitled to be accompanied), to determine whether to offer a further period of managerial support within the appraisal system, or to move onto the Capability Procedure.
This stage is strongly discouraged by the Department of Education, which has called for the removal of unnecessary stages in the performance management process, and places an obstacle in the process that is likely to disrupt its progress.
3. Once within the Capability Procedure, typically local authority procedures require the school to re-enter the Capability Procedure at the same stage at which a warning was previously given, even if the teacher’s performance (having initially improved during a period of monitoring and review) deteriorates again shortly after.
In the commercial sector, an under-performing employee would, if their performance becomes unsatisfactory again during the currency of a warning, re-enter the Capability Procedure at the next stage, i.e. if the employee has previously had a first written warning for under-performance and the warning remains in force for 6 months, should there be further performance concerns within that 6 month period, the employee would progress to the next stage, at which a final written warning may be issued.
4. Local authority procedures typically provide for warnings to lapse at the point when the headteacher (or other person reviewing the teacher’s performance) decides that an acceptable level of performance has been reached, rather than for a set period of time (such as 6 months, or a year). Since the monitoring and review period following a warning should now be between 4 and 10 weeks, this allows the teacher to move outside the capability process as early as 4 weeks after a written warning has been given.
A combination of some or all of the above factors may result in performance management processes being delayed or impeded, sometimes indefinitely. The Department of Education’s consultation paper (see above) noted:
“Where a teacher’s performance is poor, it is important that action is taken as soon as possible to address that. No one is helped by deferring action or avoiding the issue – it is unfair on the teacher, on their colleagues and on the pupils that they teach.”
Time to Change – The Way Forward
While the Department for Educations’ model Teacher Appraisal and Capability Policy may be applauded for its clarity and brevity, there are gaps in the formal capability procedure and, more importantly, very little guidance is given to schools as to how the procedures should be applied. LEA’s seem intent on ‘gold-plating’ these policies, something we believe will leave schools in no better position than they have been in the past.
We therefore recommended that the model policy is used as a framework, from which schools develop their own appraisal and capability procedures. But, crucially, schools should also develop a guidance document to assist those who are performance managing teachers.
Using a combination of the Department for Education’s model policy and procedures and those commonly used in the commercial sector, DC Employment Solicitors, in conjunction with our education HR partner ‘HR Matters’, have devised model appraisal and capability procedures that schools may adopt, together with detailed accompanying guidance containing notes on how to apply the procedures and accompanying precedent letters and forms.
These provide a clear and seamless transition through the appraisal and capability procedures where under-performance is identified, and allow effective and progressive performance management through to dismissal in cases of persistent under-performance or gross incompetence. The attached flow charts (which are abbreviated versions of those issued with our guidance) show how the procedures operate at each stage.
