Sports Direct – the Dilemma of Organisational Flexibility

To meet service needs many organisations, including schools, need to be able to use variable hours arrangements such as zero hours and other types of contracts. They need to be used responsibly. As important, is selecting the type of contractual options that will provide the appropriate flexibility for your context.

A new article on our sister blog ‘HR Management Dimensions’ suggests options and safeguards and is worth sharing with any colleagues who are having to deal with such issues.

The article can be seen by clicking this link Sports Direct – The Dilemma of Organisational Flexibility.

If you would like to discuss and review your options for more flexible staffing, please contact the author, Jim Harrington, via this link  or via the contact details on the footer of this blog page

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Are your Contractual Terms your Master or Servant?

The need to change the working hours of an individual often leads to disputes amongst both teaching and support staff e.g. changing the days of attendance or spreading the hours over more days. This is usually because the school has failed to become familiar with the terms and/or failed to ensure that its terms of employment provide expressly for this in a clear way. This was re-emphasized recently in a court case [1] and the notes below are a useful reminder of key points which schools need to consider in their circumstances. .

Unsuccessful Aims

The school wished to change the days on which an individual attended work so that the working hours were spread across 5 days rather than the current 3 days to ensure that particular core subjects could always be taught in the morning. Consultation took place but agreement was not reached. The school went ahead and relied upon a clause concerning the variation of hours.

The Court held that was ineffective for this purpose for several reasons including the lack of clarity in the contractual terms.

The school in this case was an independent school but there is a salutary warning for academies and maintained schools in the view of the author as explained below.

Familiarise Yourself with Your Terms

In presenting its case, the school did not appear to:

  • understand whether and how their terms addressed varying the hours or days of attendance of part-time staff;
  • what the related terms actually meant.

A lack of familiarity was a major contributor to the adverse decision of the judge.

This is a basic error which can be very expensive. I recall observing a case regarding a NHS employee in which the question of the suitability of alternative employment arose. At no time did the employer’s representative explain that the national agreement on redundancy defined as suitable a role up to 6 miles away. The case was lost on the distance/time to travel issue simply because the presenter was not familiar with the terms.

Clarify Your Terms

Both academies and independent schools have the power to write bespoke terms into employment contracts and thus ensure that hours can be varied including those of part-time staff. Have you recently read your terms and asked yourself, “do they reflect the needs of the school?”

Even though an academy or independent school may follow the School Teachers’ Pay and Conditions Document (STPCD), they can still amend those terms to address issues such as the variation of hours and/or days of attendance on a temporary or permanent basis.

Although maintained schools have to apply the STPCD, it is important to understand what restrictions are placed on the Head and the areas of freedom when discussing working hours [2]

Would you like a review of whether your terms about the varying of hours and/or attendance days could be improved? If so, write to the author via this link.

Breach of Terms an Effective Reason for Resignation

The determination of the school to press ahead with changes to the hours led to the employee resigning and claiming a breach of contract and thus constructive dismissal.

The school argued that there were several reasons for the resignation which were not connected with the change of hours proposed. However, the Judge decided, in line with previous Court decisions, that where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.

Review the Effectiveness of your Terms

To avoid prolonged arguments and expensive tribunal claims, reconsider whether your terms of employment on working hours and days are clear and address the likely needs of the school.

Contact the author as noted above if you would like those aspects of your terms reviewed. As noted above you may be lucky and be offered a free review.


[1] Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14/DM

[2] You may also find the following article useful – Teachers’ Working Hours – Governors’ and Head’s Duties

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The Price Tag of Continuous Service

You are sitting with colleagues about to offer a job to an interviewee.  The latter has been advised well as he asks you directly, ” I would like to be assured that you will recognise my previous continuous service in the offer for this role?”  The candidate is very experienced for the role and you are keen to seal the offer.  So you answer, “Yes, once it has been verified”.  What have you recognised and at what cost?

Statutory Continuous Service

Such service builds an individual’s entitlement to rights such as notice periods, eligibility to claim unfair dismissal, redundancy pay.  When you agree to recognise continuous service, you may inherit a long period of unbroken service which could, for example, result in up to 20 years of service being taken into account for redundancy pay.  Thus it pays to be aware of what costs you may inherit.

As it is a statutory principle, most employers have to recognise such service. However, some organisations go further and recognise a wider definition of previous service that will count for benefits etc.

Strict Reckoning of What Service Counts

Statutory continuous service is based on a strict principle. To be reckonable, service must be unbroken. A gap of just one week will break the service record. A week is measured from a Sunday but will count even if less than an hour of work was performed or if no work was performed in a week if the following applies:

  • A contract was in existence even if no work was carried out that week
  • The week by arrangement or custom is deemed to be a period of employment such as a term time worker who is not required to work during the school holidays or a woman on ordinary maternity leave.

Other situations can also arise leading to the recognition of continuous service if an individual is:

  • Incapable of carrying out his work due to sickness or injury for up to 26 weeks and is then re-employed – those weeks will be treated as continuous service.
  • Absent from work due to a temporary cessation of work even if the contract does not continue.

A Break in Service

If none of the above apply and an individual has a ‘gap’ of one week in his employment, he will be treated as having broken his statutory continuous service.

In most cases that means the service before the break will not be reckoned as statutory continuous service. However, there are some situations in which the service will not be broken but certain weeks will not be counted e.g. strikes – those weeks will not count but do not break continuous service.

In many cases, continuous service only with the current employer will count. For example, schools are not regarded as associated organisations and service with another school even within the same LA is not regarded as statutory continuous service but note the points below.

The Hidden Cost

[Author’s update] If the employer is the local authority, then any continuous service with that authority will count which will include working at other schools of the same authority whether in support and/or teaching roles.

An expensive mistake can be made if you contract to recognise service that is not continuous as you will be liable under the contract to recognise such service. Verbal or written offers of employment should make it clear that recognition of service is subject to verification of reckonable statutory continuous service and relevant previous service for particular rights and benefits.

Before answering the interviewee’s question, you should consider the real cost as you may inherit longer service because of an industry wide agreement. For example, if the interviewee has been working for a local authority type of employer, his service may count under what is known as the Modification Order.  The service must be continuous but may have been built up across several employers.  The last employer will inherit the liability for the whole continuous service of the individual

As individuals move between maintained schools and academies, you will need to have a policy on whether or not you will recognise their previous service.  Service with an academy counts for redundancy purposes but it does not have to be counted for some benefits.  In deciding your policy, you may need to take account of the thoughts below.

A Beneficial Price Tag

Some managers will be tempted to engineer a break in service to keep costs down or delay an individual accruing the right to claim unfair dismissal.  A more effective mindset is to consider the value of the experience and transferable skills that an individual will bring to the school.  Yes, that will have a price tag if things go wrong but as managers we have to nurture a culture that makes expectations explicit and provides a work environment for individuals to apply their skills to the benefit of the school as well as their own development and satisfaction from the exercise of their skills.

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Teachers’ Working Hours – Duties of Governors and Head Teacher

Lengthening the school day and week has been raised again as an option. So it is an opportune time to remind ourselves of the current legislative, contractual and other requirements governing the hours of work of teachers.  At the same time it is wise to remind ourselves of the duties of the Governing Body and Head Teacher with regard to the working hours of teaching staff.

The working hours of teachers are derived from several sources:

  • The Working Time Regulations.
  • The contract between the teacher and his employer. In state schools the contract will refer principally to the current School Teachers’ Pay and Conditions Document.
  • The school’s policy on Work/Life Balance
  • A teacher’s personal working practices.

I have focused on classroom teachers below as the leadership team and other grades are slightly different and those differences will be covered in a subsequent article.

The Working Time Regulations

The Teachers’ terms (STPCD) state clearly that the Working Time Regulations must be implemented by Head Teachers and the Governing Body for classroom teachers. The Regulations specify minimum terms that must be applied but, as we shall note later, the Teachers’ terms may provide for more than the minimum in some instances. The key aspects of the Regulations are summarised below.

Maximum Hours

Most teachers are not exempt and are therefore subject to a a limit of an average of 48 hours per week, averaged over a 17 week period.

It is an average so in some weeks a teacher may be required to work more or less hours provided those balance out over the period. It is also recognised that the number of working hours may increase in high season periods e.g. where the pattern of work increases because it is a traditional busy period in the organisation or the profession. However the hours should still be averaged out over a longer period.

A teacher may agree to work more than the maximum above by signing an opt out agreement. Even then, the Head Teacher would be required to ensure that rest breaks etc. are allowed.

What Counts Towards Those Working Hours?

The following do not usually count as working hours:

  • breaks when no work is done, e.g. lunch breaks.
  • normal travel to and from work.
  • time on call away from the workplace.
  • evening and day-release classes not related to work.
  • travelling outside of normal working hours.
  • unpaid overtime a worker has volunteered to do – such as staying late to finish off a task.
  • paid or unpaid holiday or time off for personal reasons.

The following count towards the average of 48 hours per week.

  • normal duties required under a teacher’s contract.
  • job-related training.
  • time spent travelling if a teacher has to travel as part of carrying out his contractual duties (but not if travelling to and from his normal place of work to home).
  • working lunches (which you are expected to attend).
  • paid overtime; unpaid overtime will also count if the individual has no choice but to perform it.
  • time spent on call at the workplace
  • time spent actually working abroad in some cases e.g. school trips abroad – some of that time would count
  • any other time that is treated as ‘working time’ under a teacher’s contract.

The last point is significant for teachers and is explained in section 2 below.

Statutory Rest Periods

The regulations require that teachers (as workers) are provided with the following rest periods.

Daily Breaks – a minimum break of 20 minutes must be given if a teacher is working 6 or more hours in a day. Payment does not have to made for the break. The Teachers’ terms specify when classroom teachers should have a break – see section 2.

Under the Working Time Regulations, the break can be allocated at a time to suit the operation but should be during the shift and preferably not given at the end or the beginning of the work period. Part time staff and shift workers may prefer to take the break at the end of the shift so that they can leave earlier. The Teachers’ terms specify how this affects teachers as noted in section 2.

Daily Rest Period – a rest of 11 consecutive hours in each 24-hour period should be given. The rest period may cross two calendar days depending on when the working day finishes and starts. There is some flexibility to this requirement but Governors should check that teachers are able to take this rest break each day and are free from working on their professional duties. This provision does not apply to split shift workers but such an exception is unlikely to apply to teachers.

Weekly Rest Day – a day off each week but it can be allocated as a rest period of 48 hours over a 14 day period if that fits the operation better.

Annual Holidays – a minimum of 28 days holiday (5.6 weeks) which may include public/bank holidays. Teachers are deemed to have taken their statutory holiday entitlement in the school holiday periods. Governors will need to ensure that any changes to the pattern of school term times should allow teachers still to take off their entitlement to statutory minimum holidays.

Obligations of the Head and the Governing Body

The Regulations place a duty on managers to monitor the working time of staff – the hours worked, overtime, work patterns, breaks, rest days and annual leave to ensure the minimum standards are applied. The Teachers’ Terms place that responsibility on the Governing Body and Head Teacher. It should not be viewed lightly as the Regulations were passed originally under the ambit of the health and safety directive and can be enforced by the Health and Safety Executive or local environmental health officers.

There are various provisions as to how rest periods may be allocated and exceptions in some industry sectors but generally the above apply to classroom teachers with the following caveat – the Teachers’ terms (STPCD) spell out specific tasks that count and do not count towards contractual hours and, in turn, the average working hours. Those points are discussed in the next section.

Contractual Working Time of Teachers

The contractual terms of a teacher may be found in several sources:

  • the current edition of the School Teachers’ Pay and Conditions Document (STPCD);
  • the individual’s written particulars of employment (often referred to as the contract);
  • the employer’s (i.e. the school’s or local authority’s) policies which have contractual force.

The main conditions relating to working time are set in the STPCD and are summarised below for classroom teachers. Leadership roles and Leading Practitioners have some different terms which will be covered in a subsequent article as will the particular terms that apply to part time teachers.

Directed Time

  • There is a contractual limit of 1,265 hours of directed time per annum for full-time classroom teachers in England and Wales. Those hours may be spread over a maximum of 195 days. 190 of those days are for pupil contact and the other 5 for non contact time such as professional development.
  • The hours may be allocated reasonably across the 195 days per school year on which the teacher is required to be available for work. Saturdays or Sundays or Bank/Public Holidays are not included unless working on such days is a specific contractual requirement.
  • Often the hours of teachers are explained as being for 32.5 hours per week for 39 weeks which traditionally is split into 38 weeks of term time and 5 other non-contact days. That may be convenient for calculating pay but as the directed hours can be spread reasonably across the 195 days – such an average is not immutable.
  • The Head Teacher may decide how the directed hours are used and all the hours do not need to be timetabled. Directed time includes: work directed by the Head Teacher such as teaching time, PPA allocated time, additional non-contact (or leadership/ management time), duties at break times or before/after school, staff meetings, parents’ evenings, training days and performance management meetings.
  • The professional duties expected of a classroom teacher are quite extensive as may be seen in section 51 of the STPCD 2013.

Non Directed Hours

On the surface, it appears that the working hours of a teacher fall well short of the average maximum of 48 hours per week set in the Working Time Regulations. However, the sting lies in section 51.22 of the 2013 STPCD which states, ” a teacher must work such reasonable additional hours as may be necessary to enable the effective discharge of the teacher’s professional duties, including in particular planning and preparing courses and lessons; and assessing, monitoring, recording and reporting on the learning needs, progress and achievements of assigned pupils”. This section is known as undirected time as the Head does not have the statutory authority to direct how many or when or how those hours should be used.

Undirected time is a contentious part of a teacher’s role as those activities can consume many hours which may tip a teacher across the average limit of 48 hours. Heads should check that when staff are working intensely, in term time, that they are able to take their daily rest breaks as late night finishes and early morning starts may be putting daily rest periods at risk.

Break Times

Classroom teachers who are required to be available for work for more than one school session on a school day, must be given one break of a reasonable length between those sessions or between 12 noon and 2 pm. The break does not have to be paid and is not subject to direction by the Head Teacher. A classroom teacher is not obliged to supervise pupils/students at lunch times which is why many schools hire teachers for that period on a separate contract or on a casual worker arrangement. However the requirement to allow a reasonable break still remains.

Contractual terms

Other terms covering working hours may also be contained in a teacher’s written particulars of employment or other documents referred to in those terms. Such terms are likely to become more common in the written particulars of teachers at academy and free schools.

The written particulars may also refer to policies on working hours. Clauses in policies will often not be binding in law unless those are expressed in such a way that it is clear that they are to be regarded as contractual.

Policy on Work/Life Balance

Governing Bodies and Head Teachers are required to have a policy for teachers. However, the requirement is not just to have a policy but to implement the legal requirements that are often referred to as a work/life balance. Section 52.4 of the STPCD 2013 emphasizes that this is a ‘must’ and that the Governors and the Head Teacher, “should ensure that they adhere to the working limits set out in the Working Time Regulations.” This also applies to the additional hours of undirected time.

Although the Guidance notes in section 4 of the STPCD refer to an older 2003 national agreement, that guidance still applies and contains some interesting reminders of the duties of the Governors and Head Teacher. For example, in section 26 there is a clear reminder of the wider legal duties to monitor and to take action to ensure there is a reasonable work life balance , “Employers have a duty to employees at common law and a legal duty under health and safety legislation, including the Health and Safety at Work Act 1974 and related legislation and the Working Time Regulations 1998”.

Governing Bodies should ensure that a risk assessment is carried out to assess whether or not the work demands on their teachers are reasonable and the pattern or working time does not breach the legislative requirements regarding rest breaks etc. The guidance spells out that the reasonableness of the requirement for staff to work additional hours (undirected time) must be kept under review and that duty applies to both classroom teachers and those on the leadership team who are not limited to 1265 hours per annum. The Guidance notes that it is not in the pupils’ interest for teachers to be working excessively long hours.

Personal Working Practices

We approach work in different ways. Some have the gift of being very focused and seem to be able to complete work very quickly and effectively. Many of us are not so gifted in that particular way and have to work longer. From time to time, we should review our own practices to identify:

  • opportunities to save time or to be more effective at what we do and how we do it.
  • whether we have fallen into a working pattern/method that requires too much time.

As noted earlier, the terms and regulations affecting leadership roles and especially a Head Teacher are slightly different and those will be the subject of a subsequent article.

Keep an eye out for those articles but even better receive an e-mail alert when the articles appear on this site by clicking on the link at the top of the right hand column of this page. You will then be able to receive alerts by e-mail of new articles and updates.

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Continuous Service or Discontinuous Service

With the increasing movement of teachers and support staff between different categories of schools, some interesting conundrums are arising over whether previous service counts when an individual joins another school.

To help bring some light to this question, a few articles will be published shortly. These will cover movement between maintained schools and academies and vice versa and from one academy to another.

Keep an eye out for those articles but even better receive an alert when the articles appear on this site by clicking on the link at the top of the right hand column of this page. You will then be able to receive alerts by e-mail of new articles and updates.

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Pay Standards and Teachers’ Standards

Several subtle but important changes have been included in the School Teachers’ Pay and Conditions Document 2012.

Teachers’ Standards and Pay Standards

The standards for Post Threshold, Advanced Skills and Excellent Teacher assessments are now referred to in the Teachers’ Conditions as Pay Standards. This no doubt serves to underline that the Teachers’ Standards are the benchmark for all teachers** irrespective of their role and includes the teaching practice of Head Teachers. That is reinforced further by the replacement of the core standards with the Teachers’ Standards. There is one exception though in which the core standards apply still which is noted later.

The Teachers’ Standards will have a wide effect as they have been reinforced by several links within the Document and elsewhere. Such examples include:

  • Teachers who are covered by the 2012 Appraisal regulations must have their performance assessed against those Standards.
  • Pay determination should be made with reference to the Teachers’ Standards. The scope for maintained schools to exercise pay flexibility is limited but when using the flexibility that exists, Head Teachers will need to take account of the Standards.

** QTLS holders may be appraised against any of or a mixture of: the Teachers’ Standards, other standards approved by the Secretary of State or other professional standards relevant to their teaching role.

Dealing with Post Threshold Applications

The application process falls, in effect, into two stages as in previous years but with a few changes.

Stage One – to determine whether the teacher meets the requirements of the Teachers’ Standards. The latter have replaced the core standards with one exception noted later. This stage must be passed successfully otherwise the application must not proceed.

Stage Two – to assess whether the teacher meets the Pay Standards. That is the new term used to denote the standards which are used to assess applications for Post Threshold, Advanced Skills and Excellent Teachers. Despite the new name, the standards for post threshold assessment in stage two are the same as before.

The exception to using the Teachers’ Standards at stage one arises in the following conditions:

  • The teacher applies for assessment between 1st September 2011 and 31st October 2012 and
  • His application is based on performance management evidence for a period prior to 1st September 2012 and
  • The individual is subject to the 2006 performance management regulations or the 2012 appraisal regulations and
  • At stage one, the Core Standards set out in the 2011 Document are used to assess the individual..

If the core standards are met, the assessor then proceeds to stage two to consider whether the individual’s application meets the Post Threshold Pay Standards in the 2012 Document.

Effective Date of UPS Salary Award

A successful assessment should lead to the teacher being placed on the first point of the Upper Pay Scale with effect from 1st September 2013 if he meets the conditions below..

1st September 2013 will be the effective date provided the individual is a Qualified Teacher and:

  • Is subject to the 2006 Performance Management regulations or the Appraisal Regulations 2012 and
  • Is on point 6 of the Main Scale for Teachers and
  • Made his application either in the 2012-13 school year or on or before 31st October 2013.

If a teacher is not subject to the 2006 Performance Management or the 2012 Appraisal regulations but he applied in the 2012-13 school year, the same effective date will apply

In both the alternative cases above, the application must be assessed as successful within the application year. If the assessment is not completed until after the threshold year, the effective date may have to be later than 1/9/2013 as the date will depend on what is specified in the 2013 Document.

Payment should not be backdated to an earlier date unless the individual fulfils the specific exceptions in the 2012 Document as summarised below.

Effective date 1st September 2012

Scenario 1

  • The application was made between 1st September 2012 and 31st October 2012 and
  • The teacher is subject to the 2006 Performance Management Regulations or the Appraisal Regulations 2012 and
  • He is on point M6 at the date of application and was also on point M6 in the school year 2011/2012 and
  • His application is determined to be successful in the application for threshold year.

Scenario 2 – The same effective date will also apply in the following conditions.

  • In the school year before his application, he was employed as a qualified teacher other than by a local authority in a maintained school or by a Governing Body with a delegated budget or by a local authority as an attached teacher and
  • The individual has completed at least six years of employment as a qualified teacher at the date of making his application
  • The years of employment come within the acceptable service definition in section 1.8 of the Document which refers to, for example, the minimum teaching requirement in a year and permitted absences for this definition.

Scenario 3 – Another alternative for which the same effective date will apply is:

  • This is the first application fby the teacher for assessment against the post-threshold pay standards and
  • He was placed on the leadership pay spine in any previous school year and
  • Would have been placed on point M6 had he not been placed on the leadership pay spine.

Effective date 1st September 2011

This date will apply only if the teacher meets a fuller set of conditions which include:

  • The application was made between 1st September 2012 and 31st October 2012 and
  • The teacher is subject to the 2006 Performance Management Regulations or the Appraisal Regulations 2012 and
  • He is on point M6 at the date of application and was also on point M6 in the school year 2011/2012 and
  • Is assessed as successful in the threshold application year and
  • In the School year of 2010/11, the qualified teacher was employed other than by a local authority in a maintained school or by a Governing Body with a delegated budget or by a local authority as an attached teacher and
  • Has completed at least six years of employment (as defined in Section 1.8) as a qualified teacher at the date of making his application.

Alternatively the teacher may be eligible for payment from the same effective date if:

  • This is his first application for assessment against the post-threshold pay standards and
  • The teacher was placed on the leadership pay spine in the 2010/11 school year or in any previous school year and
  • He would have been placed on point M6 had he not been placed on the leadership pay spine and
  • Is assessed as successful in the threshold application year.

The UPS 1 salary payable from 1st September 2011 is as per the UPS table for 2011 and from 1st September 2012 the salary in the UPS table for 2012 applies. I am sorry if your hopes are rising as both tables contain currently.the same salaries Perhaps this is an indication that the DfE is looking ahead to when general pay rises are restored.

In all the cases of effective dates above, you should note that if the assessment is not concluded until after the threshold year, the effective date will not necessarily be the same as it will depend on the date specified in the subsequent Document to the 2012 Document

Unsuccessful Applications

As in previous years, if a teacher’s application does not pass the first stage of the assessment, the application must be turned down and the individual notified within 20 working days of the decision being communicated to the Governing Body etc.

Safeguarding of Temporary or Fixed Term TLR Allowances

Safeguarding has not been extended to temporary or fixed term contracts in the past but a slight change has been made which may lead to some extra costs.

Safeguarding will now apply if:

  • A TLR allowance is awarded on a temporary basis or to a fixed term contract holder and
  • The allowance is ended earlier than specified and
  • The teacher’s contract is extended beyond the end of the TLR allowance.

It is presumed that the safeguarding will only last until the end of the contract in this exception but clarification is awaited.

Non Consolidated Allowance for Some Instructors

Instructors employed on points 1 or 2 or 3 of the Unqualified Teachers Scale should be paid £250 from 1st September 2012 for one year. The allowance should be paid in twelve monthly installments. Part time staff should be paid a pro rata amount.

Working Time

The annual working days are back to 195 days and 1,265 total hours for the 2012/13 school year.

If you are experiencing issues with arranging for part time staff to attend parents’ evenings etc, you may find it useful to read the Guidance in Part 3 on this matter. There is limited, but nevertheless, some flexibility available to Head Teachers in arranging such evenings as part of the contracted working time or agreeing a mutual arrangement.

Professional Conduct

One disappointment is the standards of conduct in Part 2 of the Teachers’ Standards. Those are drawn too wide to be of much help in many of the professional conduct issues that arise. School leaders will need to consider what a reasonable employer should expect of a professional person and also the circumstances in which the essential trust and confidence in employing an individual in a school has been destroyed.

Confused by references to the 2002, 2006, 2011 and 2012 Regulations?

Just remember that the 2012 Regulations refer to the Appraisal Regulations and the 2006 Regulations refer to Performance Management in England.

The 2011 Regulations and the 2002 Regulations apply to Wales and refer respectively to the appraisal arrangements and performance management arrangements.

We trust that this summary is helpful. Are there other areas of the Teachers’ Conditions or other School HR type issues about which you would like to see articles? If so, please let us know as we may produce articles on those topics. You can e-mail us via

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