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Capability procedure

The primary objective of capability procedure is to ensure maximum support through guidance, counselling and training in order that the employee's performance improves, and any problem resolved.

Members of staff who underperform sometimes have a relatively short period of service. A much larger proportion are experienced educators who are overloaded with work and/or face a plethora of new initiatives from local and central government.

Members of staff who underperform may also be dealing with the effects of diminished health. That is not to say that everyone subject to capability proceedings is underperforming.

The NEU believes the capability process is often abused, contributing to a large number of people leaving the profession.

While the NEU recognises the pressures on head teachers to save money and increase academic results with fewer resources, supporting staff development with care is vital to retain colleagues and motivate staff teams.

Where a member of staff fails consistently to perform their duties to a professionally acceptable standard they are said to lack capability. The union continues to argue that allegations of misconduct or incapability arising from persistent ill health should not be dealt with under capability/competence procedures.

Capability model policy

The aim of this model policy on capability is to provide a framework that schools can adopt to address staff performance that is having a significant impact on the employer’s ability to deliver education to students or promote their health and welfare.

Capability FAQ

Informal capability, or rather informal support, is a term commonly used to describe the period during which a member of staff is supported to fully perform their duties and to address issues of underperformance on an informal basis. Any issues of underperformance and the support needed to remedy them should be dealt with at the formal annual assessment forming part of a staff member’s appraisal.

If the issues causing concern cannot wait until the formal annual assessment, an informal meeting should be arranged, at which the individual should be accompanied by a colleague or trade union rep. The informal meeting should be considered a part of the appraisal process.

In the union’s view, you should not be placed on formal capability procedures before you have had time to take on board the concerns raised about your performance and without having an opportunity to change your practice.

The Department for Education’s (DfE) model policy – Teacher appraisal and capability – encourages schools to undertake a period of informal mentoring and support, via the appraisal process, before moving to formal capability procedures.

The NEU’s capability model policy sets out the union’s expectations in this.

School policies may provide some guidance on what will be deemed a reasonable timescale in which to demonstrate improvement. The NEU advises that timescales should be used only as a guide. The NEU capability model policy provides that initial support under the capability procedure should be provided for a period of no less than 13 weeks, with opportunity for a longer period of support.

That would depend on the circumstances. Some head teachers/principals may misunderstand the shortened four-week review procedure operating under the DfE’s model capability policy, which may have been adopted by your school and may apply to you.

The intention is that schools should use the procedure only in the most serious cases, where a staff member’s lack of capability jeopardises the education, health or wellbeing of pupils and they have failed to show improvement despite the provision of significant support.

That would depend on which aspects of your practice are causing concern. Whatever measures are taken should be supportive and encouraging rather than undermining.

It is for your head teacher/principal to determine which measures are appropriate and adequate in the circumstances but if you believe, for example, that peer observation by a colleague would make a significant difference to your practice, you could make that request.

You should not be treated as requiring informal support or placed on capability procedures because you are not considered to be among the best workers in your department or even in your school. If there is no evidence to support your head teacher/principal’s contention that you lack capability, you need to put your concerns in writing.

It is important to recognise that this may represent a bullying style of management.

Seek to act collectively with your colleagues and involve your school rep or your association/division/branch secretary. If you feel the performance management system at your school is being used to bully you, the chances are that other members of staff feel the same way.

Staff returning to school after a period of long-term absence should be given reasonable time (e.g. a term) to ease back into their role before they are observed. If an Ofsted inspection has been scheduled shortly after your return to work, there may be nothing your head teacher/principal can do about that.

In relation to drop-ins and other forms of observation, you should be given time to re-adjust to your surroundings before your performance is assessed. You are advised to put your concerns about your treatment in writing and ask that your statement is appended to the assessor/observer’s comments, or lodge a formal grievance.

That would depend on the requirements of your employer’s capability procedure – see the NEU capability model policy.

That would depend on the requirements of your employer’s capability procedure, but the NEU capability model policy provides as follows:

  • You should be notified, at least seven days in advance, that a transition meeting will take place to determine whether formal capability proceedings should be commenced.
  • You should be told which aspects of your performance remain a concern and there should be evidence to support the conclusion reached.
  • You should receive an outline of the possible courses of action which might follow the meeting.
  • You should be advised of your right to be accompanied by a colleague or trade union representative.
  • You should be informed if a note-taker, a witness or personnel officer will attend the meeting.

If you work in a maintained school and apply at some future date to work at a different maintained school or at an academy, your school will be under a legal obligation – if asked to do so – to tell your prospective employer if you have been the subject of capability proceedings in the past two years. Even if you currently work in a non-maintained school (e.g. an academy, free school or sixth form college) your school may disclose matters relating to your capability in references – they must be careful not to breach confidentiality or data protection principles when doing so.

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The need to secure fair and reasonable objectives for teachers at the start of the appraisal process.

Young man looking worried

Performance management

The NEU has produced a guidance, including model policies and checklists, to help you with performance management in your workplace, including appraisals and capability.

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