Bryan Slater

Director of Education

Distribution

To: Headteachers and Chairs of Governors of all Norfolk Schools

The attached document is provided for your information:

ACTION	Title	Statutory Disciplinary, Dismissal and Grievance Procedures
	Summary of contents	Letter and summary of the statutory procedure set out in full in Schedule 2 of the Employment Act 2002
	Associated documents	MI - with letter dated 27 September and Appendices 1 and 2
	Date	27 September 2004
	Summary of action required	Use existing procedures taking advice from Education Personnel Services as appropriate
	To be completed by	1^st October 2004
	LEA Contact	Your school’s Personnel Consultant or Personnel Assistant; OR Ray Philpott, Senior Personnel Consultant	(
	E-mail address	eps.edu@norfolk.gov.uk
	Norfolk Self Review reference	7. How well is the school led and managed? 8. How well does the school use its resources?
	Document reference	MI 182/04

Dear Colleagues

STATUTORY DISCIPLINARY, DISMISSAL AND GRIEVANCE PROCEDURES

Introduction

From 1 October 2004 new statutory provisions come into force relating to disciplinary, dismissal and grievance procedures. The purpose of the new procedures is to encourage employers and employees to settle these issues within existing procedures. The thinking is that a number of applications come to Employment Tribunals prematurely or unnecessarily so that by having new statutory provisions, more of these issues will be settled without the need for the intervention of Employment Tribunals. It is thought that an employee who has had a fair hearing before being disciplined or dismissed may be less likely to make a Tribunal claim. Similarly if an employee has to use formal grievance procedures before making a Tribunal claim then this will prevent a claim, such as a constructive dismissal, reaching Tribunal at all.

Implications for Schools’ Procedures

The two new standard statutory discipline/dismissal and grievance procedures are each in 3 simple steps and are set out at Appendices 1 and 2 to this letter. However, the regulations surrounding them seek to cover every eventuality and are quite complex.

In effect the standard disciplinary and dismissal procedure should be used in schools

(a) in relation to all dismissals including those on the grounds of:

· Misconduct

· Capability

· Redundancy (staffing adjustments)

· Ending of fixed term contracts of fifty two weeks or more

· Retirements where the contract is terminated by the school

(b) For other disciplinary or similar action short of dismissal.

The standard grievance procedure should be used by employees in schools before the employee can resign and claim unfair dismissal.

Consequently the LEA is undertaking work to help ensure schools meet these new requirements. The LEA recommended procedures already contain much of the new statutory procedures but guidance and procedures are being revised to ensure that new statutory procedures are fully complied with both implicitly and explicitly. This latter point is important as if the statutory dismissal/discipline procedures are not complied with by the employer (the school/LEA) a finding of unfair dismissal by an employment tribunal would automatically follow if the case was presented by the employee. There are similar implications for employees who do not follow the statutory grievance procedure e.g. in this situation a Tribunal would not hear a case of constructive dismissal.

As well as revising the procedures to take into account these new statutory requirements, the opportunity will be taken to make other amendments to reflect recent legislation and developments in case law. The procedures that will be considered for amendment relate mainly to the dismissal parts of staffing adjustments, discipline and lack of capability, sections 2 and 6 in the School Handbook – Personnel Management and grievance procedures section 7.

These proposed amendments will be subject to the normal consultation with Governors, Heads and the recognised teaching and non-teaching unions and when finalised will be incorporated in the School Personnel Management Handbook which can be accessed through the ESINET. Until these amendments are finalised schools should continue to use the existing procedures taking advice from Education Personnel Services as appropriate.

Fixed Term Contracts (for 1 year or more)

Schools will be aware that there are a considerable number of staff in schools employed on fixed term contracts for various reasons including covering maternity leave, temporary absences and for a temporary post where future staffing needs are expected to diminish. It is clear from the legislation and guidance that the intention is that the 3 step statutory procedure set out at Appendix 1 will apply to the ending of fixed term contracts which last fifty two weeks or more. Consequently, there is a need to review the guidance that has been issued on the ending of these contracts.

Community schools need to be aware that the fifty-two weeks of contract service could be reached by counting 2 or more separate contracts’ service with differing schools employed by Norfolk County Council. In these circumstances, the ending of the contract would be covered by the statutory dismissal procedure.

Fixed Term Contracts (for less than 1 year)

The majority of these contracts are for 1 or 2 term periods or for slightly longer in the case of covering maternity leave. The ending of these contracts does not need to be in accordance with the statutory procedures but it would still be good practice for Heads personally to see employees about the ending of these contracts about 4 weeks before the contract ends to confirm/or inform them of the ending of their contract, to discuss whether there are any other employment opportunities in the school or, where appropriate, to give assistance in finding employment at other schools. However, where, under the 2003 Regulations, dismissal has been delegated to the Headteacher, the initial meeting can be with a Deputy Headteacher. There is of course no requirement to use the statutory dismissal procedures for very short-term contracts i.e. supply teaching.

Retirements

Premature retirements and retirements at the normal retirement date of 65 for school staff are normally agreed and so the ending of the contract is by mutual consent and agreement. In these circumstances no formal dismissal is involved though schools need to ensure that agreement is in writing and the correct steps are taken. The Schools Personnel Assistant or Personnel Consultant will normally advise on this.

There may be a few situations where a premature retirement or a retirement below the normal retiring age of sixty-five are subject to the termination of the contract. In these cases, the statutory dismissal procedure has to be used. Advice on this is being prepared.

Where an employee is compulsorily retired at the normal retiring age of sixty-five then there is no need to follow the dismissal procedure. An employee cannot make an Employment Tribunal complaint about such a dismissal.

Headteachers and Chairs of Governors 27 September 2004

Conclusion

There are a number of other very detailed provisions in the statutory discipline, dismissal and grievance guidance documents. It is very unlikely that these will affect your school if you use the recommended LEA procedures and take advice from your school’s Personnel Consultant and of course, I commend this approach. As ever, any queries or concerns should be addressed with your Personnel Consultant in the first instance.

Yours sincerely