What's in a name?

With hard federations and executive headships gaining a foothold, it's no longer clear cut where ultimate power and responsibility lie. While job titles may suggest one thing, the law can dictate otherwise.

The press glossed lightly over ASCL's proposal to change the title of 'head' to 'principal' and 'deputy' to 'vice principal'. But names sometimes reflect realities and the reality nowadays is problematic.

For example, one issue brought before the Appeal Court was whether a headteacher was a 'public authority' and so personally liable for damages under human rights law. The judges in that case found that the post of headteacher was assumed, rather than established; an abstruse legal point (and in fact they did decide a head was liable) but typical of unclear aspects of senior leadership.

Though a job description of a deputy as a distinct role has been achieved by degrees over the years, the post of assistant head is distinguished only by ineligibility to deputise for the head. Both descriptions lag perilously behind practice.

Does it matter? Well, can an assistant head lawfully exclude a pupil on disciplinary grounds? No one knows for certain. Who has what powers in a hard federation with an executive head? It may be clear in theory; but not in law.

Heads have responsibility for performance management and training, initial dismissal decisions, exclusions, health and safety, and trade union liaison, to name a few. Some heads are licensed to sell intoxicating liquors on the premises.

Some of these powers and duties can be delegated; some belong to the head alone.

In a single school these functions are relatively easy to organise, distribute and exercise. Increasingly, though, it is not about one school.

Hard federations

A 'hard' federation through formal agreement, under the 2002 Education Act, either puts several schools, each with its own head, under a single governing body, or establishes a single head and governing body for several schools.

Under the first model, the issue is how a head is accountable to a governing body which also has several other schools to watch over and several other heads vying for attention.

The second situation is more complex. A school can only have one head. Whatever their title, those in day-to-day charge of the separate schools are, in law, deputies.

In these situations there must be precise execution of the duty laid on the head to make arrangements for a deputy to assume responsibility to carry out the head's duties at any time when he or she is absent from the school.

A deputy's powers in this situation have not yet been fully tested in court. It may be that a deputy acting for a head who at best is expected to spend one day a week in a school is in a different position from one who deputises for a head on the odd day.

Clarity is vital. For example, it is potentially disastrous legally for the head and governors to have one view of what staff should wear and the on-site deputy to operate on another: more so if disciplinary action has to wait until the head's circuit brings him or her to that particular school; and still more if the deputy can be over-ruled, exposing him or her to a charge of harassment.

For health and safety issues, the responsibility will probably come back to governors, but it may well be that both the head and the on-site deputy will also be liable regardless of the head's absence.

Executive heads

Another new development is the 'executive head', especially in relation to underperforming schools. This post is, of course, unknown to the law, and the name is misleading.

If a school has no head as a result of a resignation, it is lawful for a seconded head to have acting powers in one school while retaining headship of another.

However, where the head has not left the post, he or she remains the head.

It is not clear whether a governing body can instruct the head to obey the executive head's instructions in all things. In practice, the remaining head most likely will do as he or she is told for fear of dismissal. However, executive heads must act through the puppet.

The executive head may have massive influence, but in law he or she has no powers.

The PWC review of school leadership may result in legislation that will regularise present, rather unsatisfactory improvisations. In the meantime, it is prudent to be clear about powers and responsibilities.

By Richard Bird, ASCL's legal consultant