Advice on Appointments, Disciplinary and Grievance Procedures

These notes for ISM members present a view of the principles of appointment and employment of music teachers, from both the employer’s and employee’s standpoint. These notes are for basic guidance only and members should still seek legal advice on any employment matter that might concern them.
 

Appointing a Music Teacher

The key to a successful appointment is to choose the right person for the right job. This might seem obvious, but in practice the selection of staff is a complex process whereby employers and candidates match factual knowledge, subjective opinions, objective appraisal and inter-personal reactions against their respective needs and aspirations.
 

Preparing for Interview

When music teachers are to be interviewed for a post, whether a full-time or part-time one, it is strongly advised that those making the appointment, if not musicians themselves, should employ a specialist musician with experience in the field of the appointment, to advise on:

a)         whether the expectations given in the job specification are reasonable or even realistic;

b)         musical matters generally;

c)         the best candidate for the post.

Schools are encouraged to involve such a music specialist/adviser from the earliest stages of creating the job specification and advertising, to selection for interview and telephoning the network for references, in order to choose the best candidate.

The job description, for both full-time and part-time posts, should be drawn up before the job is advertised, so that it can be sent to those who show an interest in applying. Applicants should supply up-to-date CVs which give information about their background and experience that is relevant to the advertised post. In this way both parties are assisted in the process of preparing for the interview.

Employers can obtain advisory booklets from ACAS (The Advisory Conciliation & Arbitration Service) on job evaluation, recruitment, induction and other employment issues. Their address for publications is: ACAS Reader Ltd., PO Box 16, Earl Shilton, Leicester LE9 8ZZ. Tel:01455 852225.
 

Making the Appointment

Care over appointments significantly reduces problems, both in the area of work and of personalities, for both parties later on. Poor appointments can lead to unhappy personal and professional situations and the breakdown of mutual trust and confidence. The result is often an unsatisfactory termination of employment.

Applicants for teaching posts should be given an opportunity to look closely at the post. They are urged to be realistic as to whether they think they are suitable for it or not.

Music teachers, and in particular Heads/Directors of Music, occupy a high-profile position by the nature of their subject and it is crucial that head teachers are confident in the appointments which they make. The same applies to Heads/Directors of Music, when appointing visiting staff.

If the interview and selection process has been thorough for both parties, the appointment should be viewed as a long-term arrangement with dual responsibilities: schools must be prepared to back their choice and new staff members must be prepared to commit themselves to the job. New employees, both full-time and part-time, need to feel confident that they have the full backing of those who appointed them.
 

Appraisal

Positive procedures for career development should take place through an appraisal system in which there needs to be a firm commitment for agreement on both sides. Details of an appraisal system should be given at the time candidates are interviewed for a post.
 

Contracts

A contract of employment is formed as soon as a job has been offered and accepted. This applies whether or not the contract is in writing.

However, once the contract of employment has been formed, an employer has a legal obligation to give all employees whether part-time or full-time, a written statement of the terms & conditions of their employment or a written contract of employment, within 13 weeks of the start of their employment. This is one of the individual statutory rights of employees, which are laid down in the Employment Rights Act 1996.

Given the complexity of employment legislation and Inland Revenue and DSS regulations, verbal agreements are inadequate and are not recommended. A written form of contract for all post-holders, which sets out the terms and conditions of employment, including the starting salary or fee, is essential to a clear understanding between employees and employers. Prospective employees should know what terms and conditions they will be agreeing to, before they accept the post.

Among the written particulars that must be included in the main terms of service provided to employees, or made reasonably accessible to them, are disciplinary and grievance procedures.

The school’s rules for employees should also be made available so that employees will know the school’s policies on matters such as

time-keeping, absence, health and safety, dress code, gross misconduct, use of school facilities, discrimination, and other matters relevant to the nature of the school, to which grievance and disciplinary procedures may relate.
 

Probationary Periods

An employee does not acquire protected employment until he/she has worked for one continuous year, regardless of the number of hours worked by the time employment ends.The qualifying service requirement does not apply if the employee is dismissed unlawfully on the grounds of unlawful race, sex, or disability discrimination, or trade union membership or activity. There are other exclusions. Please contact the ISM for details.  

In effect therefore, the law acknowledges a form of probationary period in the first year of employment, during which the employer may dismiss for any or no reason other than those excluded by statute. It is not necessary for a school to have a stated trial period (other than that relating to the DfEE’s induction period for newly qualified teachers).

After one year of continuous service, an employee has the right not to be unfairly or wrongfully dismissed, regardless of whether they are employed part-time or full-time.

However, employers need to take into account that after one month, employees acquire the right to a statutory minimum period of notice of one week for every year of service up to a maximum of 12 weeks notice. This would apply unless a longer period of notice has been agreed in their contract of employment. Teachers’ contracts usually require either party to give one term’s notice.

Employers should take care not to misuse the option to dismiss an employee within the first year, without fair consideration: it demoralises those who remain and will be seen as bad practice. It is better to monitor the performance of new employees, to identify problems and in-service training needs and to enforce proper standards of work, with a view to helping them succeed in the performance of their job. Advice on how to approach poor performance is given in the ACAS advisory handbook, Discipline at Work.

(NB. On the other hand, it is sometimes wise to promote an employee for a trial period, before confirming the promotion, but first the employee must understand the nature of the new post and the employer’s expectations.)
 

Disciplinary Procedures

The basic principle of employment law is that an employer must behave reasonably in matters of discipline and respond to a disciplinary situation within the range of reasonable responses available. The range of such responses is described in the ACAS advisory handbook Discipline at Work, where the ACAS Code specifies essential features of disciplinary procedures, which are in accordance with the principles of natural justice. For example, the procedures should:

-           provide for individuals to be informed of complaints made against them and to be given an opportunity to state their case, before decisions are reached;

-           ensure that, except for gross misconduct, no employees are dismissed for a first breach of discipline;

-           ensure that disciplinary action is not taken until the case has been fully investigated.
 

Purpose of a Disciplinary Procedure

A disciplinary procedure maintains the standards of conduct set out in the school’s rules and, if used fairly,  provides a consistent way of dealing with employees’ shortcomings. A disciplinary procedure should be used to encourage an employee improve his/her conduct or performance. By dealing with employees’ problems in their early stages, they can be minimised and the need for dismissals should be reduced.

Except in a case of gross misconduct, a disciplinary procedure should not be used simply to enact a dismissal.
 

Stages

Sometimes counselling is a more appropriate action than calling a disciplinary interview. A private meeting at which both the employer and employee discuss the problem and ways of overcoming it, might be all that is needed. The employee should understand what improvement is needed, how it will be monitored and over what period. The employee should be told that the next step would be a formal disciplinary meeting should there be no improvement. A note of the meeting should be kept so it can be referred to if necessary.

If it is appropriate to invoke the disciplinary procedure, an employee should be told in advance that a meeting is to be of a disciplinary nature. The employee is entitled to know what is being alleged, to be given time to prepare for the meeting,  to be accompanied by a friend or representative and to be given an opportunity to state his/her case. It is advisable for the employer also to have a witness present to take notes of the proceedings. The outcome of a disciplinary meeting should not be a foregone conclusion.

The accepted stages for carrying out disciplinary procedures as recommended by ACAS are:

1.         Oral Warning

            The employee is advised of the reason for the warning, that it is the first stage of the disciplinary procedure, and of the employee’s right of appeal. The employee is given a stated period in which to improve, after which the situation will be reviewed. A brief note of the oral warning is kept but it will be spent after the stated period, subject to satisfactory conduct and performance.

2.         Written Warning

            A written warning is given to the employee giving details of the complaint, the improvement required and the time-scale for effecting it. It will warn that action under stage 3 will be considered if there is no satisfactory improvement and will advise of the right of appeal. A copy of this warning is kept but it will be disregarded for disciplinary purposes after a stated period, subject to satisfactory conduct and performance.

3.         Final Written Warning or Disciplinary Suspension

            The procedure is similar to stage 2. Any decision to dismiss at this stage or at either of the preceeding two stages would be premature. This or any other action should only be decided after reviewing the employee’s conduct and performance at the end of the warning period.

4.         Dismissal

            The employee is provided as soon as possible with the written reason for dismissal, the date on which the employment will terminate, and advice on the right of appeal. If the dismissal is the result of a decision by the Board of Governors, appeals are usually heard by representatives of the Governors who must not have previously been involved in the decision to dismiss. If the dismissal is upheld, and the employee has grounds to claim that the dismissal was unfair, he/she has the right to appeal to an Employment (formerly Industrial) tribunal within 3 months from the date of the dismissal. Members should seek advice immediately from the ISM’s Legal Helpline or the Head of Legal & General Services.
 

Exceptions

Only for very serious misconduct is it considered justifiable to issue only one written warning which is, in effect, both a first and a final warning, but even then the procedures are the same as for stage 2.

Summary dismissal or immediate suspension may be justified in cases of gross misconduct. Suspension should be on full pay; it is a neutral act while the matter is being investigated and is not meant to be a disciplinary sanction. The matter should still be investigated in accordance with accepted procedures and the employee given the opportunity to appeal. Again, if the dismissal is upheld and the employee has grounds to claim that the dismissal was unfair, he/she has the right to appeal to an industrial tribunal.

There may be occasions when it suits both the employer and the employee to terminate the employment contract by mutual consent, with or without observance of the agreed notice period. This should be agreed in writing. However, employers who simply seek to get rid of employees by asking for their resignation, by demoting them, by unilaterally altering the agreed terms and conditions of their employment or by making them redundant, should take legal advice first. It is possible that such a actions could amount to unfair or wrongful dismissal or a breach of contract.
 

Grievance Procedures

Just as a disciplinary procedure provides a route by which an employer may register a complaint about an employee, a grievance procedure allows for an employee to raise serious concerns about his/her employment and for steps to be taken to try to resolve the matter.

If an employee has a grievance, the usual procedure to follow is:

-           The employee should initially raise the matter with his/her immediate senior/superior, in a meeting arranged for this purpose.

-           If the grievance is not settled within a stated time, or if the grievance concerns his/her immediate superior, then it should be submitted in writing to the Head Teacher.

-           If no settlement is reached within a stated time, the grievance may be submitted to the school’s Governors, whose decision is final.
 

The Advisory, Conciliation and Arbitration Service

The impartial and independent advice of ACAS is available, on request. Matters on which ACAS will advise include: machinery for the negotiation of terms and conditions of employment, procedures for avoiding and settling employees’ disputes and grievances, disciplinary matters, and claims for unfair dismissal and redundancy.

ACAS can be involved in settling a dispute with an individual employee provided there is a potential or actual breach under the Employment Rights Act 1996. This is regardless of whether any formal claim has been made to the Employment Tribunal. ACAS can best help if consulted early and told what the problem is.

The first contact should be made to the appropriate regional office. Regional offices are situated in Newcastle-upon Tyne (Northern Region), Leeds (Yorkshire and Humberside Region), London (South East Region), Bristol (South West Region), Birmingham (Midlands Region), Manchester (North West Region), Glasgow (Scotland), Cardiff (Wales). The Head Office is at Brandon House, 180 Borough High Street, London SE1 1LW, tel. 0207 210 3613. Copies of Discipline at Work and other ACAS leaflets can be obtained from these offices.

Refer also to ISM Information Sheets:
01/4 Shared Music Teaching - Free for members, non-members can purchase online.
02/14 Visiting Teachers in Schools (instrumental, singing, music) Rates
03/7 Part-time Teaching: Accepting the Job - Free for members, non-members can purchase online.
03/8 Part-time Teaching: Contract Advice - Free for members, non-members can purchase online.
M1/1 Guidelines on the Use of Written Agreements - Members only - must login to view
M1/6 Redundancy: Some Facts - Members only - must login to view
M2/6 Professional Conduct with School-Aged Pupils - Members only - must login to view
M3/2 National Insurance Contributions for Employment & Self-Employment - Members only - must login to view

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