Advice from the hotline...

The ASCL hotline is a completely confidential service available to answer members' questions on issues that arise in school/college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

Absent without leave?

Q A teacher has had two absences during the last 11 months - one of 30 days and one of two months. During the last five years his yearly average has been 35 days away - can he be dismissed on grounds of capability?

A Possibly. You are not expected to continue to employ people who are not fit to do the job, even if their absences are spread out. If you feel that there is a medical issue which is affecting the teacher's performance, a medical report must be obtained from a suitably qualified expert, usually of consultant status. The employee's consent will be needed for this but if he refuses, the employer is entitled to form their own view - which may be that there are performance issues.

It will be important to follow all procedures that are currently in place and to bear in mind that the current Statutory Disciplinary and Dismissal Procedures will be replaced in April 2009 by new procedures based on the ACAS Code of Practice. HR advice should be sought and followed.

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Job share hypothesis analysed

Q The science department here includes two teachers who are both employed on .5 contracts. They both undertake duties on a pro-rata basis.

Is it possible for me to insist that their situation becomes that of a job share, in which they share a tutor group, a teaching timetable, parents consultation commitments and so on? Or can they insist that things remain as they are?

A Attempting to impose a job share arrangement upon them will amount to a change in their contracts. For this reason it would be advisable to be very wary of insisting on any change. Indeed, if one or both are unhappy with the change it could lead to a claim for constructive dismissal, provided the individual has the requisite one year's service.

A tribunal might take the view that the changes involved are minor or trivial, in which case it would not amount to a fundamental breach of contract. It depends upon how the changes impact upon them.

In the first instance, an informal exploratory discussion with each individual might be held and if there seems to be a possibility of developing a job share, specific proposals might be mooted with the suggestion that each of them seeks advice from his or her union with regard to any proposed new contract.

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A valid claim for rejection?

Q At a colleague's school, a teacher on a temporary one-year contract was encouraged by the head of department to apply for the job when it was to be made permanent. At interview he failed to get the job in competition with others. He is asking for £5,000 in compensation and is being backed by his union. Is he within his rights to do this?

A Any teacher who has completed one year's service has the right to make a claim with an employment tribunal for unfair dismissal. In this case the tribunal may well decide ultimately that his claim fails because he was on a fixed-term contract and agreed to the conditions of it.

However, regardless of the outcome, the employer has to put in the time and cost of mounting a defence against the claim. Compensation of £5,000 is at the upper end of what are considered to be economic/nuisance settlements. Unfair as it may seem, the school might be inclined to offer him £2,500 as a settlement without acceptance of liability - but even £5,000 might well be cheaper than fighting the claim.

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Keep in touch over maternity pay issue

Q A member of staff is on maternity leave and wishes to take advantage of her 'keeping in touch' days. I should like her to use the ten days to take revision lessons and to pay her for these days. She is willing to do this but has said that she is unwilling to come into school to teach unless she is paid her normal salary. What is the position?

A Keeping in touch days can include performing an employee's normal duties without loss of maternity pay. If, however, the employer is happy to make her maternity pay up to her normal contractual pay for these days, this is permissible. It would be advisable to clarify exactly what has been agreed with the member of staff and to ensure that this is confirmed in writing.