CATCH UP: ADVICE FOR THE CURRENT TIMES

Advice for the current times

‘When staff conduct breaches trust and confidence’ – we walk you through a case study and discuss the mitigation strategies and prevention remedies for school leaders.

An on-demand event jointly hosted by the NAHT and Discovery Education.

Andrew Hammond and Guy Dudley discussed the issues currently facing school leaders and those teaching and working in schools.

In this session, we covered:

  • An actual case study illustrating a real example of staff conduct that breaches a school’s trust and confidence
  • The lessons learnt from the case study
  • The ‘hearts and minds’ strategies school leaders can take to create the right culture and values for their school
  • The practical steps school leaders can put in place to support the overall strategy

Many of these topics have been supported by wider advice pieces that can be found in NAHT Discovery Education Pathway’s Advice Hub where you will have access to an on-line library of information, advice and guidance to support you in your professional role and your continuing professional and personal development and empowerment.

If you’re a Pathway subscriber, you can access these advice pieces in the Pathway Advice Hub.

 

 

Conduct that breaches trust and confidence:Top of Form an actual case study [anonymised] – [Pathway Advice Hub – HR]       

Sam v governing body of a primary school

This case study walks you through an actual case that went to an Employment Tribunal and subsequently to an Employment Appeal Tribunal.

Background to the case

In this particular case, two deputy heads were friends at neighbouring schools. One of the deputies, Andi, was arrested for possessing indecent images. Sam, Andi’s friend and the other deputy, was advised by their head teacher that they should not stay in touch with Andi. However, Sam said that they wouldn’t do that. Sam’s head teacher took no further action on this occasion.

Some months later, following comments that had come to the attention of Sam’s head teacher, Sam was invited to a meeting to discuss their continuing friendship with Andi. The school was satisfied with Sam’s responses to their questions. The school took no steps to alert Sam to the comments that had come to their attention nor did the school warn Sam of the consequences of the continuing friendship.

A short while after this meeting, Sam was suspended from work and a disciplinary meeting was convened to hear three allegations:

  1. The continuing friendship with Andi was seriously impacting the school’s reputation
  2. The continuing friendship presented a potential and avoidable safeguarding risk to the pupils of the school
  3. Sam’s judgement in this matter had led to a breakdown of trust and confidence of the head teacher and rendered Sam’s continued employment at the school untenable.

Sam was dismissed following the disciplinary hearing. Sam subsequently appealed the decision.

The appeal panel found that the first two allegations were not proven but found that there had been a breakdown in trust and confidence and upheld the decision to dismiss Sam.

Dissatisfied with the appeal panel’s decision, Sam took the case to an Employment Tribunal.

The Employment Tribunal

The tribunal, on the facts of this case, accepted that the reason for dismissal was ‘some other substantial reason’ – a common catch-all legal concept for those dismissals that do not fall into the other designated categories for a fair dismissal – capability (performance or health related), conduct, redundancy and breach of a statute (i.e. breaking the law).

The tribunal then went on to decide if the overall process was fair, by considering the events leading up to the dismissal. The tribunal felt that it was unfair that the school did not formally warn Sam of the potential consequences of their continuing friendship with Andi. The tribunal also felt that the school had failed, at an early stage, to deal with the issues arising from Sam’s continued friendship with Andi.

Even when the school became aware of comments relating to this case, it did not take any formal steps to inform Sam of their concerns or advise Sam about their conduct in this matter. The school failed to set out a clear instruction to Sam or warn Sam of the consequences of breaching the instruction. For these reasons, the tribunal found the dismissal to be unfair.

This time, the school appealed.

The Employment Appeal Tribunal (EAT)

On appeal, it was held by the school that in a case of dismissal for ‘some other substantial reason’ [in this case, a loss of trust and confidence], the Employment Tribunal was not entitled to have regard to the causes of that loss and that it should have restricted itself to the fact of the loss of trust and confidence alone.

In other words, the argument on the school’s behalf, was that that the focus for the Employment Tribunal’s decision-making had to be upon the reason for dismissal and it is to that (i.e. the reason) that the requirement of fairness is addressed and judged.

It then argued to the EAT, that had the dismissal been for ‘misconduct’, the presence or absence of a warning would have been a highly material factor in assessing the overall fairness – however, in this case, the dismissal was for ‘some other substantial reason’. The EAT rejected this argument and said that the Employment Tribunal was entitled to take a broader view.

The thinking of the EAT was that where the substantial reason relied upon is a consequence of conduct (as it was in this case), there was a clear analogy to a dismissal for conduct and that it was appropriate for the Employment Tribunal to have regard to the events leading up to the breakdown of trust and confidence and the dismissal. In short, this case had all the hallmarks of a case of misconduct.

The EAT stated that you simply cannot reach a conclusion that there has been a loss of confidence without examining all the circumstances and merits of the case.

The lessons learnt from the case study

  1. In the first instance, ensure that if the matters in dispute relate to an alleged breach of trust and confidence, a school would be best advised to use an external party to conduct an investigation.
  2. If there is an issue regarding an employee’s conduct, which then escalates to a breach of trust and confidence, then, as the employer, you must make the employee aware of their conduct and the consequences that may arise.
  3. Where appropriate, provide an employee with a warning that their conduct may amount or escalate to a breach of trust and confidence, set out a clear instruction to the employee not to continue with such behaviour and make them aware that if they continue with such behaviour, their contract may ultimately be terminated.

Final comments

This was a case where the cause of the dispute was clearly related to Sam’s conduct – the effect of Sam’s continued conduct led to a breach of the school’s trust and confidence.

The school lost their appeal because they had selected the wrong route to dismissal – they should have and could have dismissed Sam on the grounds of conduct, and as such, should have issued Sam with a formal and clear instruction to discontinue their friendship with Andi.

It’s a fine line but the school’s ultimate call led to an ‘unsafe’ dismissal which was always likely to be challenged by Sam – it was and they won!

The ‘hearts and minds’ strategies school leaders can take to create the right culture and values for their school

Recommended strategies for creating a positive school culture

The process of improving your school climate and culture begins with knowing what changes can be made.

Use school data to set a vision and values

  • Knowing what the school data says about school culture is important for both planning and implementation. Using surveys with staff and pupils that measure the ‘cultural climate’ can help with planning a strategy [Pathway Advice Hub – Working with others].
  • As the school leader, spend time in the classroom and focus on the behaviour and teaching practice, and use this information to determine the data you need to collect.
  • Using a data-informed approach provides some strategic direction in building a positive school culture. Involving staff, pupils and their families in the process of changing the culture also shows them how much they are valued.

Set clear expectations

  • School leaders must provide a clear vision for the school community to follow.
  • Set positive school and classroom expectations that are aligned to the school’s culture and share them with parents and carers. Positive reinforcements help to encourage continuous positive behaviour.
  • Establish appropriate consequences for negative behaviours. Collect data on the use of these consequences, what behaviour they’re associated with and determine if there is a pattern or trend in the data collected.

The plan for the school culture change may be different across schools but the tips above support any school environment.

Engage teachers & support staff

  • Promote a shared vision, i.e., valuing culture by connecting with school staff about the school environment and academic expectations.
  • Provide professional development and support – this ensures that staff have the capacity to sustain any work relating to the development of the school’s culture.

Get parents involved

  • Establish clear and open communication with parents and guardians. Connecting the school experience to the family environment creates consistency for pupils. This also involves others in reiterating classroom and learning expectations.
  • Encourage family involvement in their child’s education by keeping them looped into school policies and practices. This also includes their voice in decision-making processes and connects pupils to the school culture.

Involve pupils

  • When children feel engaged, they build relationships that affirm their safety and welcome them into a space that wants to see them learn.
  • Listen to new ideas (take risks) and value ‘pupil voice’ – marshal pupils’ ideas to build plans that promote a positive school culture.
  • Praise and reward – incentive programmes allow teachers, staff and pupils to identify positive actions and reinforce those through praise. The authenticity of this is grounded in the relationships pupils have with teachers.

 

The practical steps school leaders can put in place to support the overall strategy, ‘staff conduct’ in particular

I want to bring the focus of this webinar back to the subject of staff conduct, where it started, and provide school leaders with a framework for ensuring that staff conduct is the best that it can be.

If you’re a Pathway subscriber, you can access these advice pieces in the Pathway Advice Hub.

 

Staff conduct framework

For all staff

Create a Staff Code of Conduct [Pathway Advice Hub – HR]

Staff Appraisal objectives [Pathway Advice Hub – HR]

Disciplinary policy [Pathway Advice Hub – HR

Management Standard Setting Letters [Pathway Advice Hub – HR]

 

For teachers

Teachers’ Standards Part II [Pathway Advice Hub – HR]

 

For school leaders

School Leaders’ Charter [Pathway Advice Hub – Leadership & Governance]

Behaviour is powerful and observable – when people observe our behaviour, they instinctively build an image of us and develop a narrative about us – their conduct and behaviour towards us will reflect and, in large part, mirror that image and narrative – a positive image and narrative will be mirrored by positive conduct – a negative image and narrative will invite contempt or, more commonly, avoidance.

Let’s end with a relevant quote “Behaviour is the mirror in which we can display our image” Mahatma Gandhi