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.

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Peer observation and CPD

Q Am I entitled to direct teaching staff to undertake peer observations as part of their continuing professional development? It is not related in any way to performance management and the peer observations could be carried out in PPA, non-contact or gained time. And am I entitled to insist that teachers must allow peers to observe their lessons? If so, how often can they be observed?

A You are not entitled to direct teaching staff to participate in peer observations, as these are voluntary, whether within or outside performance management. The Performance Management Regulations (paragraph 5.19) states:

"Teachers should have the opportunity to engage in classroom observation with other professional colleagues, by agreement, in order to review and develop their practice. Developmental peer observations are voluntary and initiated by teachers and are not part of performance management arrangements."

However, as the regulation infers, peer observation is considered a valuable tool for improving teaching practice. It is perfectly reasonable for heads to create a climate of professional development where peer observation is actively encouraged and happens almost as a matter of routine, but it may not be made mandatory. Non-contact time and gained time may be used for peer observation, but PPA time may not.

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Employer identified

Q Please can you offer guidance as to who is the ultimate employer of teaching and support staff in a community school such as ours. A former teacher is threatening to take us to employment tribunal for unfair dismissal. If she goes ahead and wins her case, would the school or the local authority be responsible for paying compensation?

A The head together with the governors has day to day management and control of teaching and support staff and the head will often act as the employer's representative. On the other hand, the contract of employment will usually be with the local authority. Therefore both have ultimate responsibility for teaching and learning.

When an employee - that is, a member of the school staff - is in dispute with the employer and decides to issue employment tribunal proceedings, these will usually be issued against the governors. The local authority does however have a right to be joined in to this since it will almost invariably pay any compensation awarded.

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Religious holiday advice

Q Please could you clarify the position regarding requests for time off for religious holidays that fall within term-time?

A As with religious dress, there is no clear cut answer. The right to freedom of religion under the European Convention on Human Rights does not give employees the right to refuse to work on certain days for religious reasons.

On the other hand, the Employment Equality (Religion or Belief) Regulations 2003 prohibits an employer from discriminating indirectly by operating a 'provision, criterion or practice' that disadvantages on the grounds of religion or belief. This could include work requirements which stop people meeting religious obligations.

However, refusing time off for religious holidays can be justified if it is "a proportionate means of achieving a legitimate aim". Schools work fixed hours and therefore it may be impossible for a school to allow absence and fulfil its 'legitimate aim' of educating students.

A refusal must also be proportionate. An absence of a single period or a day missed occasionally may not be problematic but multiple staff absences may create insuperable difficulties.

Your absence policy should state that each case must be considered on its merits. Every request for leave of absence on religious grounds should not automatically be granted or it becomes custom and practice. Then, when circumstances change, it can create a major problem.

Leave of absence that is granted will generally be without pay unless there are specific local provisions for religious leave to be paid leave.