A bitter pill...

Where staff are uncooperative, inadequate or otherwise incapable of doing their job, leaders must invoke the necessary procedures swiftly, says Richard Bird.

Is anything more dispiriting than having one or more members of staff who are either inadequate, uncooperative or perpetually ill? Sometimes a sense of helplessness sets in; neatly summed up by a headteacher in archaic times who was allegedly overheard muttering, "While there's death, there's hope."

In business, a more robust attitude often prevails, as in "if you can't change the people, you must change the people."

In law, an employer does not have to retain an employee who is incapable of doing the job to the required standard (summed up for teachers in the professional standards for teachers) or who is unwilling to meet employer's standards.

A person can be dismissed for capability: either an inability to do the job or a physical incapacity that has the same effect. The same applies to conduct, which can include a refusal to conform to requirements, organisational or otherwise, of the organisation.

Of course, in practice it isn't quite so simple. For example there should be agreed and up-to-date, ACAS-compliant procedures and policies. Some inherited procedures, with appeals at every stage and governor involvement almost from the start, interminably drag out the process to nobody's benefit.

Then again these staff may have given long service and to deal with them in an uncaring way will seriously damage staff relations. However, schools and colleges also have a duty to ensure that young people receive the best possible education; therefore none of this should prevent schools or colleges from taking action.

Avoid dithering

The golden rule is to act early. A long, dithering period before procedures are invoked not only makes the problem harder to deal with but creates opportunities for complaints about management. Unless someone clearly is improving, then the sooner formal procedures begin, the better. This protects everyone. Different issues need different tracks. For capability, where illness is not an issue, the agreed process for schools starts with informal support. Then, from the initiation of formal procedures, the process to dismissal should take two terms:

• Weeks 1-20: support

• Week 20: review

• Weeks 20-24: support

• Week 24: final evaluation and referral to disciplinary committee

Some schools spend 18 months on informal counselling. Indeed, I knew of one where it lasted 20 years. In fairness, that was before performance management became embedded.

Which, of course, brings us to the sine qua non of managing capability: middle managers who are prepared to take managing their staff seriously, even if it means challenging, keeping records, observing and making unfavourable judgements on colleagues.

People need to know that they are heading towards the precipice of dismissal. Disappointingly often, feedback is either insufficiently challenging or overly aggressive. One leads to confusion at best; the other leads straight to a grievance for bullying.

Managers must demonstrate that they want the person to improve and they must play it absolutely straight. However, staff need to know they will be judged by performance and that if they do not perform, then, in an entirely open and 'correct' way, the school surely will proceed to the next step, whichever it may be.

'Correct' does not mean cold. Support and supervision are vital and without them a dismissal will always be open to challenge. However, neither frequent observation nor uncompromising feedback constitutes bullying. Bullying is about deliberate humiliation.

'Well notes'

Illness does add complications. A school must be sure that it has not caused it by asking too much of one member of staff as compared with another.

The new 'well notes' - whereby GPs sign patients as fit to do specific tasks in their jobs - may help. By stating the conditions for a member of staff to return to work, they will help managers to judge whether reasonable adjustments can be made.

But if a member of staff cannot complete a full week's work for much of a term, year on year, s/he is obviously in the wrong job. The purpose of the Disability Discrimination Act is to help people into work, not to excuse them for not doing it.