As part of our work with schools, over many years, we’ve often been told “but we were told we couldn’t do that” or “I didn’t think we could do that”. So, we’ve put together the top ten myths that we have heard and the actual answer to each one, explaining that in fact yes you can, there are options available. We hope you find them useful.
- You can’t dismiss a teacher for poor performance….
Of course you can. You can dismiss any employee for poor performance (under the Employment Rights Act the term is “capability”). Ultimately use your capability or performance management process and work that through to the end. Ultimately you are able to set out the level of performance that you require to any level (i.e. if you wish to set the standard that all teachers must be good or outstanding in terms of assessments/observations and you are clear and open about that policy and maintain it consistently, then you can dismiss teachers for poor performance even if they are achieving a “requires improvement/satisfactory” level.
- You can’t turn down a request to work part-time….
Of course you can. You do however have to have a good business reason to do so. If employees make a request under the flexible working procedure, then there are time limits to follow. Additionally, you do require good business reasons for refusing this. However, it is possible if you can show that you could not operate with an employee working part-time (it is always worthwhile looking at job share etc/considering the proposal fully however.
- You can’t discipline a member of staff on hearsay evidence….
You can. It may not be best practice. You can however dismiss employees based on your own “reasonable belief” based upon “reasonable grounds”. This often means that you have to rely on hearsay evidence (second hand evidence). However ultimately provided that you have good evidence to rely upon, you are entitled to disbelieve an employee and find him guilty of an offence on hearsay evidence.
- You can’t dismiss an employee if they have raised a grievance….
Yes you can. It may be appropriate depending on the nature of the disciplinary and the nature of the grievance raised to hold off the disciplinary hearing pending investigation of a grievance. In the vast majority of cases however the grievance tends to either be the employee’s mitigation evidence or alternatively a diversionary tactic. However, take advice in respect of the grievance that they raised. However, there is nothing in law to prevent you from dismissing an employee who has raised a grievance.
- You can’t force an employee to give evidence at a disciplinary hearing….
This one probably is true. You can’t “force” employees to do anything. What you can do however is apply reasonable pressure to employees. You do not want to be in a situation of “I don’t want to give evidence at a disciplinary hearing”. Unless the employee has a very good reason for it (fear of personal safety etc) you can reasonably instruct employees to carry out any function of their employment including attendance at a disciplinary hearing. You can threaten up to the point of advising that employee that a breach of this reasonable instruction may well lead to disciplinary action against them for failure to comply with the reasonable instruction. Ultimately no, you can’t force an employee to do anything against their will, however there is pressure that you could apply to employees in this situation.
- You can’t make a pregnant employee redundant….
Of course you can. If the school closed you would have to make them redundant! Additionally, where there is a redundancy situation the employee who was off on maternity leave/pregnant should be included in the pool for redundancy at that time. It may not be ideal, however it is likely to be a detriment to that employee to not consider her in the redundancy pool at that stage and consider redundancy on her return. In this situation (as often occurs) available roles/vacancies are taken up by employees in the first instance, putting the pregnant employee at a disadvantage. Our advice would be to take additional care around pregnant employees, but to include them at the appropriate time in a redundancy pooling process.
- You can’t dismiss an employee if there is a “precedent” of not doing so….
Again, this myth is probably as close to the truth as you will get within these ten myths. You only set “precedents” by creating an implied term that you will not carry out a certain action, or by repeatedly failing to dismiss in certain circumstances. There are two ways around this, firstly by distinguishing the cases (i.e. they are not truly identical). The second is by “drawing a line in the sand”. What you would do in this instance is make clear to your entire work force that in the past conduct “x” may have been tolerated. In future, it will not be and will be treated as a gross misconduct offence and be likely to result in dismissal. In doing so you rule out all previous history of any bad “precedent” and put your work force on alert to the fact that they know that if they do act “x” in the future the likelihood is that they will be dismissed.
- You can’t give a fixed-term contract to an employee covering maternity leave….
Completely wrong. In fact, it is best practice to cover maternity leave with a fixed-term contract. Beware of employees on a fixed-term contract of a year or more (clearly this may be different for contracts that start after 6 April 2012). For employees on fixed term contracts who have unfair dismissal rights (i.e. employees who may have been permanently employed and then put on fixed term contracts subsequently – the ending of a fixed-term contract is a “dismissal” in law. Therefore, you require a fair reason to dismiss. This may be redundancy but take care in terms of pooling. Simply because somebody is on a fixed term it does not make that pooling or their dismissal fair.
- You can’t dismiss an employee for medical incapability before their sick pay has expired….
Again, this is incorrect. It is possible in certain circumstances to dismiss an employee before they have exhausted their sick pay. However, the situations where it occurs are likely to be rare. Where you provide for a significant period of sick pay (say up to a year) you are setting out clearly in the contract that you anticipate that employees will be off for up to a year. Therefore, by implication you anticipate they may be off for this period. Therefore, to dismiss before the end of this period may be viewed as unreasonable by a Tribunal. It is possible to dismiss before the end of the period where an employee has no likelihood of return to work ever or within say two years. In such a situation, it would probably be fair to dismiss before the expiry of sick pay. However, these situations are likely to be rare.
- You can’t discuss sickness absence with a pregnant employee….
Yes you can, but take care in doing so. Pregnancy related sickness absence should be excluded from figures i.e. it should be paid in full and not counted as against absence figures for trigger points etc. It is perfectly reasonable however to discuss sickness absence with a pregnant employee, particularly where there may be patterns to that and also where it may be affecting workloads of other staff in order to assess the business provision the school need to put in place.
There are options….
We won’t tell you “you can’t” take the action that you want, or need, to take. If you want a HR partner that can help you achieve your objectives and offer commercial and impartial advice then give one of our team a call on 01924 827869 or email email@example.com for more information.