Negative growth

With budgets becoming tighter, schools and colleges may face the unwelcome prospect of reducing staff numbers. Richard Bird gives an update on the laws and proper procedures regarding redundancy.

Student numbers generally are falling and we can be pretty confident that there will be cuts in government spending as the recession continues.

The rules on balances mean that schools, if not colleges, should not resort to a large carry-forward as an insurance policy against a shrinking budget; this all points to redundancy.

Before going down this route, school and college leaders need to be well aware of the issues.

Advance planning

Firstly, timing. In making a teacher redundant all the normal processes of fair dismissal apply and the employee is entitled to contractual notice. For teachers under the Burgundy Book (School Teachers' Pay and Conditions Document) this means three months' notice to 31 August, so the whole process must be completed by the end of May.

There must be opportunity for an appeal process following the meeting with the employee at which it is decided to dismiss him/her. There should be timescales already built into each school's/college's process: perhaps ten working days between each stage. This effectively timetables the meetings near the start of the summer term.

There must have been time to call for, and consider, voluntary redundancies and to negotiate with the local authority over any possible enhancement to the redundancy package. Though consultation with unions is only statutory for the dismissal of 20 staff or more, most procedures will include it. Consultation must be meaningful and start when the employer begins considering redundancy. Thirty days is about the lowest limit.

So allowing for the Easter break, the decision to declare a potential redundancy situation may come back to February when you may still be guessing at your budget.

Then there is 'the pool' of staff affected. Is it the whole staff or the people in the relevant department only? Some staff have qualifications in areas outside their current teaching role. An active trade union officer will naturally try to insist on a skills audit of the entire staff.

Selection processes must be objective, fair and consistent. 'Last in, first out' (LIFO) may well still be lurking in your procedures. This could infringe age discrimination regulations. However, if there is a good reason for favouring one age group more than another, then the courts will accept it.

Schools may value loyalty and continuity and keep LIFO. But, bearing in mind that DCSF-sponsored research showed that capability processes were most invoked for staff with between 12 and 20 years' experience, they may not.

Capability score

Other fair criteria for deciding redundancy are attendance, discipline record and capability generally. There may be a 'scorecard' system but it must be managed fairly, as there will be trouble if a capability score diverges significantly from previous appraisals. Where performance management has been slack or un-moderated, going down the capability route will be a nightmare.

It is unlawful to select on grounds related to trades union activity, health and safety duties or maternity. Proven discrimination, of course, will remove the cap to awards at employment tribunal.

Someone dismissed for redundancy has a statutory right to take reasonable time off to look for work and there may be redeployment agreements in force in your area. They are entirely voluntary but it may be in every institution's interests to accept them. Usually they do not guarantee a post, just consideration.

Finally, what about redundancies within the leadership team? Here the key issue will be whether the work has diminished and whether the redundancy is genuine or it appears to have been manufactured by restructuring tasks. Redundancy may not be used to 'deal' with capability issues or personality clashes.

Redundancy may hit at an unfortunate moment in the rotation of jobs. Some deputies argue that their qualifications for subject leadership are demonstrably higher than those of the present incumbent. It would be legally possible to 'bump' that incumbent out of his/her post. If this is the case, members are encouraged to make a precautionary call to the ASCL hotline.

Governors and corporations also need to consider who they use for human resources support. It goes without saying that mishandled redundancy is an expensive but very effective way to lower morale.