Q&A

Urged to follow selection protocol

Q I am retiring at the end of this academic year, at the age of 61, from my headship of a maintained foundation school. One of the deputy heads who has been with the school for many years is a natural shoo-in to take over and has expressed the desire to follow me in the post. The governors are keen for this to happen. Is there anything they should look out for?

A All headships and deputy headships in maintained schools have to be advertised nationally. We would urge the governors to comply with this requirement. They should not write an advertisement with the express view of moving the deputy into the headship with a nod and a wink, but should ensure that the selection and appointment process is both legal and fair. Both central and local authority look distinctly unfavourably on attempts to bypass these requirements. If the deputy does indeed get the post, governors will want the process to be seen to be open and transparent.

Regulations state that head and deputy posts may be advertised by the governing body: "in such a manner as it considers appropriate". However the guidance from the DfES recommends that "at the very least it should be advertised in a printed publication circulating throughout England and Wales". This would be seen as good practice unless there were quite exceptional reasons why this should not be followed.

You may consider that the governors could benefit from ASCL's headship appointment consultancy; if this is the case, contact the ASCL MAPS Office on 0116 2991122 or consultancy@ascl.org.uk

Spirited action required

Q Our school has a temporary member of staff covering a maternity leave in the PE department. This person came to school reeking of alcohol and was spoken to by the head, since when she has not been into school, leaving messages that she is too stressed to teach. Where do we go from here?

A You should institute disciplinary investigations. Our advice would be to involve the school solicitors with a view, if your investigation finds her to be guilty, of dismissing her for this conduct. In these sorts of cases, it is not unusual to proceed at a fast pace since there could possibly be issues of child protection.

Seek advice on liability

Q It has been reported to me that a Sikh pupil is in possession of a knife in school, but a colleague has warned that this may be for religious reasons. I have never heard of this. How should we react?

A This has not been fully tested in court in this country. Your colleague is right that there is a religious duty on Sikhs to wear a kirpan, or ceremonial dagger, to symbolise their willingness to defend members of their community. However, in court cases in the United States and Canada, the general position has been either to forbid it outright or to permit it as long as it is clearly ceremonial and sewn into the sheath so that it cannot be drawn.

There have been no reported cases of the kirpan being used to inflict harm and respect for religious freedom should take precedence. Community context is important here. If it applies, your local authority legal department should be able to advise on the local view of the matter and the school's liability if a pupil is injured.

Proceed, but with caution...

Q We have a member of staff who has been with us about three years. For the last year her attendance has been appalling and we are proceeding to dismiss on grounds of ill health. Her union representative, however, has stated that part of her absence is a result of a chronic medical condition which amounts to a disability and therefore dismissal would be discrimination. Can we proceed?

A On the face of it, yes, but with caution. Employers must certainly take all reasonable steps they can to accommodate someone with a disability, but the provisions of the Disability Discrimination Act do not impose an obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health, even when that is due to the disability.

If the employee is unable to do the job for which you employ her you, it almost certainly will be justifiable to dismiss on the grounds of ill health.

What's in a name

Q There is a pupil at our school whose parents went through an acrimonious divorce years ago. The father appears to have lost touch and the mother would like the child to be known by the name of her new partner. The child is also keen for this to happen. Are there any legal repercussions if we do this?

A The position in law is that a child may not change his or her surname without the consent of both natural parents. A natural parent can obtain an injunction to prevent it. If a parent remarries, it is possible for that parent to obtain a court order to make the change.

A school may make a pragmatic adjustment but the pupil's name for all administrative purposes (including examination entries) must not be changed. We suggest that the best course of action for the school is to advise the mother to either obtain the written and witnessed consent of the former partner or, if that is not forthcoming, to seek a court order. In the consideration of an order, the interests of the pupil, of course, are paramount.