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Jim Harrington
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How Valid is an Inspection by OFSTED?
Head Teachers are sometimes surprised by the cursory observations and way in which an inspection is conducted. One may accept that professionals in all disciplines, including OFSTED inspectors, may have an occasional ‘off day’ but the outcome of a flawed inspection is likely to have a serious impact on the reputation of both the school and the staff.
While the inspection process allows for comments on the inspection to be fed back, that may not be sufficient to overcome the loss of confidence in the process and the resulting damage.
Earlier in 2016, the Courts demonstrated that they will not allow OFSTED or other government related bodies to exceed or abuse their powers. Although the case involved early years provision by a nursery school and the safety of children, the case is of interest because it sets out some key principles and comments on the inspection process and the duty of an inspector.
The Evaluation Process During an OFSTED Inspection
Some of the Judge’s comments are given below regarding the process. At the core of the case was a grievance that an OFSTED Inspector had exceeded her powers by investigating a complaint made by a member of the public about the safety of a child – a child had been pushed accidentally into a road while children were being escorted between the nursery and the primary school.
“… the evaluation must be evidence-based, with “the main evidence” coming from the inspector’s direct observations and interviews with the relevant staff.”
“…I consider this aspect of the defendant’s guidance (i.e. OFSTED – editor) to be of fundamental importance. Inspections of schools (and the subsequent reports) are a vital tool in the defendant’s armoury so as to ensure that all schools strive to and maintain a proper standard. But it is of critical importance to ensure that such inspections are not random, one-off events in which absolutely everything turns on what happens on the day of the inspection. Instead, inspections must be carried out on a consistent basis, ensuring that each one is part of a continuum, building towards improvement or the maintaining of excellence.”
“…A system of inspection which ignores previous inspections runs the risk of turning the whole process into a lottery. It would give the individual inspector on the particular day of the inspection an arbitrary power and influence. It would prevent systematic monitoring and consistency of approach. It is most definitely not to be encouraged.”
Those are piercing words about the inspection process as may be expected when the Courts have to intervene to determine the respective legal rights of the parties but even more so when the facts are examined. The Inspector decided to investigate a complaint but did not have a duty to nor the legal authority to do so in this instance. It seemed that OFSTED received a complaint about the incident involving the child which, within a week or so, resulted in an inspection and also led the Inspector to take a critical view of the organisation’s performance as the incident overshadowed the objectivity of the inspection. The Judge examining the evidence did not find that approach justifiable and felt that there was an element of ex post facto justification on issues such as the number of adults escorting the children. In particular, the Judge noted there was no balance as the Inspector, in her report, did not refer to the previous history of the provision nor the achievements to date nor a previous, fairly recent OFSTED report.
Remedy for a Flawed Inspection
The publication of the OFSTED report was deemed to be unlawful as was the investigation of the complaint by an Inspector. The question arose as to whether the school was entitled to damages regarding its reputation. The answer in this case was that reputational damages did not arise because:
- “Section 151 of the Education and Inspections Act 2006 provides that reports of this kind are privileged unless malice is present”;
- No malice was present in the publication of the report;
- No damage to the school’s reputation had arisen in practice.
Starting a court case to secure a reasonable outcome is an expensive process but in some instances may be necessary if an inspection report is flawed significantly on the evidence especially if the inspection feed back and complaint process is not taken seriously as warranted by the facts.
Unfortunately, it is not just OFSTED that have occasional flawed inspections and outcome summaries of a school. Local Authorities can also at times create issues for the Head Teacher and Governing Bodies.
Local Authority Stances Towards Schools
For much of the time, Local Authorities are supportive of their schools but in recent times both financial pressures and performance vetting has led some authorities to become embroiled in disputes and/or interference with the leadership of a school. The reasons are not always clear for this but seem to be driven by the LA wishing to force the school to accept a course of action that would be detrimental to the school’s future provision and attainments. This also seems to be influenced by the LA losing ground in its attempts to retain schools under the LA banner.
Such disputes are damaging to the trust between the school’s governing body, senior leadership team and the LA and are also draining as energy and focus is sapped away from raising students’/pupils’ achievements.
As such times, the Governing Body and Head Teacher can find it helpful to seek independent advice not tainted by the politics of the LA. Such advice can help Governors and the Head to explore options to move forward with or without the support of the LA.
If you believe as a Head Teacher or as a senior School Governor that such as confidential discussion would be helpful to take on objective view of the ways forward,
contact Jim Harrington for an exploratory discussion.
His contact details can be seen in the footer of this post.
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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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Does Your Senior Leadership Team Implement Decisions Effectively?
Many Heads and Governors review their hr and organisational policies during the Summer term in readiness for the new school year. Have you ever wondered whether the key parts of such policies are enforceable if breached? Consider the following situations:
i) A member of staff uses social media to berate a member of staff or a pupil/student of the school? Would your policy give you the authority to take disciplinary action against the individual?
ii) A member of staff is required to work additional hours/overtime at certain times of the year but the individual refuses and does not appear to have a significant reason? That is a common requirement in service industries but also arises occasionally in schools.
iii) An individual has frequent absences for what does not appear to be sound reasons. If your policy has a clause that triggers the start of an absence management procedure when absence exceeds a certain number of days, would you be able to enforce the taking of formal action under that procedure?
Many Policies contain Vague Clauses
Staff Handbooks are often divided into sections, one or more of which are expressed clearly as being enforceable terms of employment. However, policies and procedures can lead to a false sense of security for Heads as the terms may not be enforceable.
Three ring binder open to the center between yellow and brown tabbed dividers from www.freeimages.co.uk
Policies are written often in a style that provides guidance for managers and/or staff and sometimes amongst that guidance there may be provisions or clauses that you regard as contractual terms. Hence, your belief is that a breach of those will give you the right to take formal action against the member of staff. How certain are you that they will be regarded as terms of employment and therefore any formal consequence for a breach would be legitimate?
One of the problems you have to overcome is to ensure that the provisions are clear as to what the employee must do or not do on the matter concerned. However, the wording of such provisions is often vague and will not necessarily be regarded as apt for incorporation into the contracts of employees.
Dividing Line between Guidance and Enforceable Terms
Disputes about whether the employer has a right to enforce a clause in a policy have been the subject of court cases over the years. Recently, the Court of Appeal decided a case [1] as to whether parts of policies are appropriate to be incorporated into an individual’s contract i.e. that they are legally binding. The case concerned whether the terms of an absence management policy would allow the employer to take action under that policy. The principles apply generally to the question of whether some clauses in a policy are to be treated as contractual obligations.
What Is Likely to Make a Clause in a Policy a Contractual Term?
You can improve the likelihood of key clauses being regarded as part of the contract by taking note of the following points:
- Ensure the clause is very clear in stating what is required of the employee in the situation;
- Linked to the above is the need to ensure the provision is workable and makes business or organisational sense;
- Check that the nature and language of the clauses convey that the provision is intended to be contractual;
- The placement of the clause/provision is important – if it appears alongside other provisions that are contractual then it is likely to be regarded as contractual.
If the clause/provision becomes part of a dispute, a Court will have regard to whether:
- The provision is important to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them;
- The above question equally applies to procedural provisions i.e. how important is the clause/provision to the structure of the procedures and implementing the contractual arrangements – the more important the provision, the more likely it is that the Court will believe that the parties intended it to be contractual.
Express Clauses are Best
That is true and easy to say but the need for new or revised policies often arises after the staff handbook has been produced and so those clauses can not be placed in the contractual terms section of the handbook. Hence, the importance of the points above when writing a policy or revising one.
If practical, it would be preferable to separate out, in the policy, the provisions that are intended to be contractual as this will tend to reinforce the contractual nature. Simply stating that the provisions are contractual will not make sloppy, ill thought out clauses contractual. A Court will only deem a clause to be contractual if it is apt for incorporation.
Take an Objective View When Writing a Policy
Bear the above points in mind when writing policies or guidance documents that contain matters that you would wish to be treated as contractual terms e.g to enforce via a form of management action such as disciplinary action or ill-health action as mooted in the three examples at the start of this article.
Consider the benefit of having an independent person review your policy document. This will provide an objective view of whether clauses are sufficiently robust in their construction and intent so that the clauses are likely to be regarded as having contractual force. The author, Jim Harrington, will review policies with this in mind and other key points to ensure your policy is effective. Please feel free to contact Jim Harrington via this link Send an e-mail to HR Management Dimensions or via the contact details shown in the footer of each blog page.
Sources:
[1] Department for Transport v Sparks & Ors [2016] EWCA Civ 360 (14 April 2016
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Protecting Data and Confidentiality
As Head Teacher or Chair of Governors are you confident that your data protection is managed effectively at your school? If not, these are the likely consequences:
- Damage to the reputation of the school if a breach occurs;
- A significant fine;
- A mistake in the way data is handled and/or confidentiality could have adverse consequences for a child or a member of staff or a parent/guardian.
Who on your SLT team has been allocated the role of Data Protection Coordinator? The SLT needs to take leadership responsibility for this important area as it is coming under increasing scrutiny. One or more members of the SLT need to be developed to take on the role. (See our earlier article about developing members of the SLT). The creation of such a role does not transfer liability to the individual as the school still bears the responsibility as an overall data controller. The creation of the role should help to ensure you have appropriate arrangements in place.
To help you to develop a member of the SLT appropriately, some pointers are given below and:
- Use the references section to read further advice on the requirements;
- Carry out an audit and lead discussions at the SLT to build ownership and confidence in the school’s arrangements.
What Data Should be Protected?
In essence any data which identifies a particular individual and which has the following characteristics:
- The data is sensitive as it contains personal information about an individual,who is still alive, and refers to, for example, health, ethnic origin, religious beliefs, alleged or actual criminal offences and even trade union membership;
- The data is private and if shared inappropriately would have an adverse impact on the individual;
- Such data concerns an individual, for example, a child, parent/guardian, member of staff, governor, volunteer, job applicant, work experience person or a former employee or child/student;
- Such data that is held on paper, on a computer or tablet or mobile phone or lap top, camera or stored on a disc or memory stick, kept on a server whether at the school or elsewhere or stored in a cloud storage arrangement.
As you will gather the scope and care of such data is wide in its nature and also its potential accessibility. Later, I shall refer to a data protection audit with the chance for you to obtain a blank template for your school. Before that we need to understand the dimensions of data protection in a school setting.
In What Way Must Such Data be Protected?
Are you confident that the data your school stores and uses meets the following criteria? When ‘individual’ is used below it applies to any person e.g. employee, pupil, parent who is the subject of the data.
i) Data is Processed Fairly and Lawfully
- Has personal data been acquired in a fair and transparent way?
- Where appropriate, has the individual provided the information and consented to its use in the way intended? The use to which data is put may not be obvioius to individuals so less obvious purposes should be explained especially in unusual circumstances e.g. during a transfer of staff under TUPE where information about employees has to be provided to another employer.
- Is the collection and processing of the data required by law, irrespective of the individual’s wishes? Examples of this need will be encountered but again is the collection and use of such data in line with ii) below?
- Has the school notified the Information Commissioner of the data that it collects etc and the use to which that is put?
- Is the individual able to see the information that has been or will be collected about him/her? What rights does the school have to decline to provide data if the effort is disproportionate to the purpose?
- Do you have an effective policy in place for individuals to obtain copies of the data held about them? What exceptions can you include in the policy?
ii) The Data Collected must be Relevant and Sufficient but Not Excessive
- The data should be relevant to the purpose and not go beyond that. Collecting personal information regardless of its relevance would be unlawful;
- Data should not be retained longer than necessary. You need to become familiar with the periods required by law, the DfE etc. for data which you may hold at the school or elsewhere. It is useful to publish a retention policy so that all staff are aware of what records may be kept, by whom and for how long;
- Data must also be accurate and up to date. Errors must be corrected promptly when they are discovered or when made known to the school;
- The use of CCTV and other media should not be overlooked. The prevention of crime is a recognised use of CCTV but should not be used for other purposes unless individuals affected are aware of this. Covert surveillance is subject to special requirements which can be seen on the Information Commissioner’s web site.
iii) Data is Kept Secure
- Only authorised persons should have access to personal data and only for the approved purposes – that requires practical measures to ensure that others can not see or access the data in question. A walk around the school after most staff have gone home can be revealing as to now much personal data can be seen or accessed by anyone walking about.
- How secure is stored data? Is paper data kept locked and access limited to particular individuals who understand the need for confidentiality at all times?
- Is access to programmes or folders containing personal data restricted to authorised persons? Are strong passwords used and kept secure?
- Do you have policies about the way in which personal data may or may not be kept on memory sticks, portable hard drives etc?**
- What instructions have been given about the holding of personal data on lap tops and the security of that data and the lap tops?**
The two asterisked points above are those in which there have been significant breaches of data protection and on which the Information Commissioner has taken strong enforcement action. - Who holds your data externally and where is it actually stored? For example do you use a cloud service such as Dropbox or similar. Personal data should not be transferred to a country outside of the EEA except if the data is kept secure. Beware that there are misgivings about the Safe Harbor Scheme in the USA. You should consider the use of agreed contract clauses to ensue that all parties will keep data secure. There are EC Model Clauses available to use – refer to the Information Commissioner’s website for details.
- You need to inquire where your data will actually be kept as even UK storage companies may be ‘holding’ your data in overseas storage facilities.
- When data is no longer required, are your disposal arrangements secure? If a contractor is used, you should walk yourself mentally through (or physically if practicable) the processes that the contractor’s staff will apply to your data.
Embedding Your Data Protection Arrangements and Policy in the School
Having a policy is a requirement but how will that be applied in practice?
- What actions are necessary to ensure that your staff, volunteers and Governors are aware of the actions to be taken re the above points?
- What aspects of the use of personal information do students/children need to be made aware of?
- What procedure should be followed if a breach of protection is discovered?
- How will you ensure that the breach is remedied promptly and that preventative action is taken and monitored?
- How are you developing a culture of respect for confidentiality within the school?
Audit of Data Protection Arrangements
A data protection audit is a useful way to identify what data is actually being collected or stored and the used to which it is put. An audit helps to ensure that certain types of data or current practices are not overlooked and also begins the process of making managers and staff familiar with what needs to change and practices must be kept under review.
Further Reading – Schools and Data Protection Duties
Summary_report_dp_guidance_for_schools, September 2012, Information Commissioner.
Pointers for Schools by the Information Commissioner’s Office
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Developing Your Senior Leadership Team Members and the Governing Body
Occasionally, we shall publish special articles, as part of a series, on developing your senior leadership team to be more confident and skilled in carrying out the many duties of an employer besides the learning and attainment of the children/students. This is to help:
- Head Teachers and Governors to ensure that certain aspects of school life are being managed appropriately;
- Those members of the SLT who aspire to become head teachers;
- Parents and staff know that the school is under sound management.
Often the temptation is to delegate those aspects to the administrator or business manager but the SLT and Governors need to be confident that these responsibilities are implemented effectively.
The articles will summarise the key points to check. Ensure that you receive an alert to its publication and new articles on this blog by clicking on the link in the left hand column to receive notifications by e-mail.
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Zero Hours Contracts – New Implications for Managers
Heads and SLT members need to be aware of the implications which may affect:
- Mid Day Supervisors;
- Casual/Zero hours support staff;
- Zero hours teaching staff;
- Peripheral Music Tutors;
- Other sessional only workers
Sessional workers for whom the arrangements are more akin to a zero hours or casual arrangement may also fall within the new regulations if there is no guarantee that work will be provided by the employer.
It would be wise to ensure that the use of confidential information is protected and that any terms are revised which tend to restrict the freedom of a zero hours worker to take up work with another employer.
For a fuller summary of the new regulations and points for managers to consider see our article on our HR Management Dimensions blog – Zero Hours Contract Workers – New Rights.
Related Blog Articles
Casual/Zero Hours Staff – A Balanced Approach
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Red, Amber, Green (RAG) Indicators – Are They a Valid Tool?
Is a RAG indicator (i.e. Red, Amber, Green traffic light) :a valid tool for:
i) Measuring performance?
ii) Prioritising the use of time and resources?
RAGS are used fairly widely but mainly as a quick way to focus attention on areas where more attention is needed which may involve allocating more time and resources to address the issues.
RAGs are usually crude but useful aids that help to focus discussions and energy. Read more about the use of RAGS and how they can be misleading if viewed as performance measures. You can view a short article on our HR Management Dimensions facebook page.
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The Living Wage and the National Wage – hidden costs for employees and employers
This article was updated on 28/12/15
Schools will experience pressures on their salary budgets and other costs in this academic year due to the fall out from:
- the increase in the current Living Wage;
- the growing number of employers voluntarily adopting the Living Wage;
- the introduction of the National Living Wage in April 2016;
- the implications for the grade structure and differentials for support staff.
The Living Wage is different from the National Living Wage. The latter currently has one minimum rate for adults aged 21 and over which is £6.70 per hours. From April 2016, an additional age band will come into effect. That applies only to those aged 25 or over and the rate will be £7.20
A Pincer Effect
It is not just a question of affordability as you need to consider:
- the strain on grade structures and pay differentials from April 2016 when the new National (Living) Wage of £7.20 per hour takes effect for employees of 25 years or older;
- how you will shape the expectations of employees as some staff are likely to receive a lower net pay increase than anticipated and thus feel disaffected;
- what are local employers doing about pay in your recruitment area?
Now is the time to consider what actions you can take to contain salary costs and to attract and retain key staff.
Direct Salary Pressures
Some faith schools and Local Authorities have adopted the Living Wage which means their minimum salary rate will now be £9.40 per hour in London and £8.25 per hour elsewhere. In some instances, the local authority has recommended that schools adopt the Living Wage. An increasing number of employers are adopting the Living Wage – about 2,000 have signed up to pay the Living Wage. Those are not all large firms so you need to understand what is happening locally. If the Living Wage becomes an issue locally, it will lead to a significant increase as additional employer on costs will be incurred compared to the current LA Support staff rates – see later.
In April the National Living Wage of £7.20 will take effect. That is mandatory so schools will have to pay the minimum rate for those aged 25 or over. Currently the adult minimum wage for those aged 21 or over is £6.70 per hour. From April that rate will still apply to those aged 21 and up to and including age 24.
However the rise in the basic pay rates is just one part of the problem. Pay differentials will be affected especially for support staff in the lower pay grades.
Erosion of Pay Differentials Grades 1 and 2
When the National Living Wage starts in April 2016, those aged 25 or over will be entitled to £7.20 per hour in place of the current minimum wage rate of £6.70 per hour.
This will present problems for roles that are on grades 1 and 2 and potentially grade 3 of the support grades. The rate of £7.20 would equate to point 9 on grade 2 which is the mid-point of the grade. That will affect, for example, Mid Day Supervisors, Teaching Assistants (Grade 2).
This will also increase employers’ on costs. Heads will face an increase of between 6% and 30% depending on whether or not a member of staff is in the Local Government Pension Scheme.
Compression and Inflated Salary Rates
As the National Living Wage only applies to 25 years olds, Heads should strive to retain flexibility within their pay structure so that they can pay the national minimum wage rate of £6.70 for adults aged between 21 and 25 and the rate of £7.20 for those aged 25 or over. Simply abolishing the current grade 1 will lead to grade compression and inflation within the grade structure. Staff on grades 2 and 3 will feel that the differentials are no longer representative of the actual demands of their role compared to ‘lower graded roles’. Some managers will sympathize with that feeling.
Employee Disenchantment – Shape Expectations
Some staff will experience higher deductions from their pay because their earnings will pass the threshold for auto enrolment into a pension scheme. That will be felt even more in 2017 when the minimum contribution from employees will rise from 1% to 3%. [Note the Chancellor has indicated that the increase in contribution rates will be deferred until 6th April 2017 – see note at end].
It is also anticipated that firms will seek to offset the rise in wages by increasing prices. Any increase in the price of basics, such as food, will erode much of the gain for lower paid staff.
Heads should encourage managers to shape the expectations of employees by forewarning them of the likely effect on their gross and net pay so that they are not taken aback by a smaller net increase in their pay.
Options to Minimise Cost Increases
What will your first reactions be? Will you gravitate towards the following thoughts:
- recruit staff under the age of 25 – this solution will eventually become ineffective as the staff age and it may distort the balance of skills and experience required amongst your staff;
- reduce the number of hours/staff affected by the new salary rates. However, that may be thwarted by the need to have a minimum number of individuals assigned to specific classes or groups and hence the need to retain individuals;
- reduce overtime – in many schools overtime is not significant.
Unlike industry, schools do not have much room to improve productivity in ways which will reduce wage costs. A more measured approach is required to identify options that will fit with the school’s needs
LA Schools
Local Authorities may try to compress the grade structure, as happened a few years ago. That is likely to leave some staff feeling undervalued as staff in the lower grades receive a boost to their pay which narrows differentials in pay between higher grades.
Whether your LA changes the grade structure or not, one potential solution is to consider the role of MDS v TAs for dinner times. Some schools claim that the use of TAs to supervise the lunch break leads to the children settling down quicker after being active during the lunch break. Recruiting staff as TAs on grade 2 or 3 (depending on your LA’s role descriptions) may provide a more flexible solution as TAs should be employed for both lunch break and classroom duties i.e. employed for a morning or afternoon spanning the lunch time. TA grade 3 may be more appropriate if the number of issues to be dealt with at break times falls within the grade 3 rather than grade 2 role definition.
Heads may also consider developing the skills of their support staff so that any increase in pay is matched by a more flexible set of skills – read more about this option below. Heads will need to consider the implications of the LA grading structure for such an option and whether the LA grading and role descriptions will hinder or prevent that as a way forward.
Academy Schools
Academy Schools have a wider range of solutions open to them as they are not restricted by the local authority’s support staff pay structure. Heads would be wise to check whether, in the TUPE consultations, any agreements were made to follow the LA terms and if those, in practice, have become contractual terms for their support staff.
New ways can be introduced, for example:
- Increasing the skills and versatility of individuals so that as the pressure on pay rates grow, staff will be encouraged and expected to apply a wider range of skills and carry out wider duties – which should help to contain costs;
- Focused skill bonus payments which are paid periodically e.g. quarterly or annually as the skills become evident – these bonuses would not form part of the basic pay rate and so would not lock the school into higher, on-going rates of pay;
- Market rate supplements that can be reduced, stopped or increased to match the pressures on recruiting and retaining key individuals.
Thought will need to be given to the wording of the terms for such new options to ensure that the Head/Governing body retains flexibility on costs etc.
If you have concerns about your reward structure and/or salary levels or you
wish to explore new approaches, please feel free to contact
the author, Jim Harrington, by e-mail at this address..
Related Blog Articles: Read more about the ripple effect and options to address salary pressures in our blog article – Living Wage has Hidden Costs for Employees and Employers.
This article is an extended version of an earlier article published on 16 November 2015 and has additional material added because of the interest shown in the topics. Note that the increase in employee and employer contributions to 3% and 2% respectively has been postponed from October 2017 until 6th April 2018.
© 2015 HR Management Dimensions Ltd.
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Do Schools Have a Role in Improving Productivity?
For many years, the UK has experienced low productivity. Whilst some causes are beyond the control of senior managers in an organisation, research and other trends indicate that managers can prepare to address the new pressures and increase productivity.
Schools have a role in helping UK managers
to raise productivity.
The Challenge for Schools and the Education Sector
This is an extract from the second of our articles on the issues facing organisations as the pressure on salary costs will grow in the coming months. This extract focuses on the potential role of schools in the productivity jigsaw.
“There still remains the issue of low skills or perhaps more accurately the lack of opportunities for young people to explore how their interests and gifts can find fulfillment in different types of work. We need to go further than a work experience week. Is there not a place for enabling youngsters to explore their skills before the end of the school year so that they can see how their interests and natural abilities can be put to use at work and thus widen their horizons of what they could do? The weeks after SATs etc. could be put to use by giving them an exposure to various practical skills and learning opportunities about different disciplines and so whet their appetite to explore job/career options in which they develop an interest.
We need to value practical skills in manufacturing and engineering but also provide real taster experiences for young people to identify what leanings they have and what direction they should take in work. However that is not just a challenge for schools and colleges – companies also have to be prepared to invest time in making such practical lessons and experiences of interest and realistic.”
You can read more in our two articles on the issues of Productivity in the UK in our HR Management Dimensions blog
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