Q&A

Stressful for all involved

Q I am currently the deputy in charge of staff attendance and cover matters. One of the teachers, I am sure, is playing me for a fool by turning up for work for two or three days, then taking time off, sometimes a day or two uncertificated by a doctor's note, but frequently a week or sometimes more. She is always able to provide a doctor's note which states "suffering from stress, not fit to work until..." and then gives a date two or sometimes three weeks in the future. How long must we continue to put up with this situation?

A The law affords no special protection to employees who are sick, above the normal statutory right not to be unfairly treated. The governors have the option of considering dismissal on the grounds of capability, assessed in light of health or any other physical or mental quality. Grounds for dismissal fall into two categories: long term sickness and persistent and frequent short term absences.

You are entitled to a second opinion. The teacher should be required to see the occupational health service or a doctor of your choosing and, dependent upon advice from the doctor involved, the governors may act upon that guidance.

Employers are duty bound to ensure that those who teach are competent to do so and that they remain competent and fit. You will hopefully have a procedure which will involve an informal stage, counselling, formal stage, formal interview, first then second assessment, dismissal and appeal stage.

Limit-ed damage

Q A colleague has been convicted of drink driving (luckily not on school business) and has been disqualified for driving for 12 months. The police have referred the matter to the DfES who have in turn referred it to the GTC. Is this likely to result in a disciplinary sanction by the GTC? The colleague is particularly concerned that his teacher registration may be revoked.

A The GTC has the power to impose disciplinary sanctions for cases of unacceptable professional conduct, serious professional incompetence and where a teacher has been convicted of a relevant offence. This situation falls under the third - a relevant offence.

The GTC Code of Conduct states: "All criminal offending should be avoided. However, isolated road traffic offences would not normally be considered as behaviour incompatible with being a registered teacher. In all cases the counsel considers whether there is a trend of re-offending, which may merit further action."

It would seem, therefore, that drink driving (in the absence of any aggravating features such as causing death or personal injury) would be unlikely to result in disciplinary sanctions by the GTC.

Incidentally, criminal offences which have been determined as relevant include benefit fraud, indecent assault and inflicting grievance bodily harm.

Dealing with dismissal

Q I am the head of a maintained foundation school and may have to dismiss a secretary for gross misconduct. I am told the statutory dispute resolution procedures must now be followed. What does this involve?

A These came into force in October 2004 and state, among other things, that employees must have the right to accompaniment by a representative of their choice at all disciplinary and grievance proceedings. They also provide that employees facing disciplinary action must be notified in writing of the allegations they are facing together with any accompanying documents and the date, time and place of the hearing. With regard to grievances these must be dealt with expeditiously, again by arranging a hearing.

These are extremely important new procedures since failure to follow them may result in any dismissal being automatically unfair and can also enable an employment tribunal to increase any award by up to 50 per cent. The new procedures can also apply to redundancy situations since these are also dismissals. Again if the correct procedure is not followed the redundancy may be held by an employment tribunal to be automatically unfair.