Winning pay appeals

Looking at your school’s pay policy

Your first step is to be familiar with your school pay policy’s pay progression criteria and its pay appeals procedure. Here, you will find further steps to take if you decide that the policy itself should be challenged, rather than decisions made under the policy.

In Wales, performance-related pay has been abolished in favour of experience- related pay progression and national pay scales for Wales have been implemented. The advice below relates to the position in England where performance-related pay has not yet been abolished. Members in Wales should refer to the separate teacher pay arrangements in Wales STPCD. All teachers below the maximum of the main or upper pay range are entitled to be considered for pay progression every year – it is not an application process.

Checking the policy’s progression criteria

There are no longer any statutory and nationally-applicable criteria which governing bodies must follow when taking pay progression decisions. The STPCD provides is that pay progression decisions should be based on appraisal outcomes and that the school pay policy should set the criteria to be achieved for progression.

Para 19.2 says that the governing body decides how pay progression will be determined, subject to the following requirements:

"the decision whether or not to award pay progression must be related to the teacher’s performance" as assessed through appraisal;

a written pay recommendation must be made as part of the appraisal report and the governing body "must have regard to this recommendation"; and

"continued good performance as defined by an individual school’s pay policy should give [a teacher] an expectation of progression to the top of their respective pay range".

Para 19.3 requires the governing body to set out clearly in the school’s pay policy how pay progression will be determined.

Schools are therefore allowed to set their own criteria subject only to the requirements in para 19.2 set out above. No statutory national criteria or guidance exist for reference. This makes it harder to argue that pay progression criteria are being incorrectly applied, or that they are incompatible with the STPCD, excessive or otherwise inappropriate.

Criteria must, however, be fair, transparent and objective in order to meet the standards proposed by the DfE’s pay advice that “ “arrangements ... can be applied consistently and pay decisions can be objectively justified” (page 9 column 2).

Criteria which do not meet these requirements should be challenged through collective challenge or pay appeals. Equally obviously, any unfair or inappropriate interpretation of criteria should be challenged as well.

Checking the procedure for taking decisions and making appeals In most schools, the decision on pay will be made by a governors’ committee, which must “have regard” to the reviewer’s pay recommendation and may also seek the views of the head teacher as well. It is possible for governing bodies to delegate pay decisions to head teachers alone – but the NEU and other teacher unions advise strongly against this.

The DfE’s pay advice says that if head teachers think teachers should not progress, they should allow those teachers to attend the governors’ decision meeting (with the right to have a union representative) and present their views before the decision is taken. This is welcome – it is easier to stop decisions being taken than to get them overturned. The NEU believes that this should apply in all schools as part of their pay procedures.

The NEU believes that this should apply in all schools as part of their pay procedures. Regardless of whether the teacher was allowed to be present when the decision was taken, however, there is a formal right of appeal against any decision to deny pay progression. With regard to pay appeals, the DfE’s pay advice identifies a range of possible grounds for appeal (this is not an exhaustive list):

“Teachers have the right to raise formal appeals against pay determinations if, for example, they believe that the person or committee by whom the decision was made:

1. incorrectly applied the school’s pay policy;
2. incorrectly applied any provision of the STPCD;
3. failed to have proper regard to statutory guidance;
4. failed to take proper account of relevant evidence;
5. took account of irrelevant or inaccurate evidence;
6. was biased; or
7. unlawfully discriminated against the teacher.”

Pay appeals can be pursued on any of the above grounds, covering situations where teachers are deemed not to have met the required criteria or standards, and can also be pursued on the following grounds as well:

the criteria should be set aside because experience shows that they are excessively or unfairly demanding in practice to an unintended extent (in particular if they do not in practice guarantee progression for “continued good performance”); or the criteria should be set aside because they are irrational or potentially discriminatory.

The NEU’s preferred criteria for pay progression

The NEU argues that all teachers who have had successful appraisal reviews should receive pay progression and that appraisal reviews should be deemed successful unless significant concerns about performance were raised in writing with the teacher during the appraisal cycle and were not sufficiently addressed through support from the school by the conclusion of that process.

The NEU has negotiated pay policies on this basis with many LAs and academy chains and with many individual schools and academies. Pay policies drawn up on this basis will support fair pay progression.

What to do if you decide your policy is unfair or in conflict with NEU policy

If your school’s pay policy sets unfairly high demands for progression or includes criteria which disadvantage teachers in certain groups or with certain protected characteristics (eg older women), it is not too late to organise to secure a different policy. You could use examples of members being treated unfairly in previous years to strengthen the case for changing the policy.

Tackling matters collectively will be a far better approach than trying to deal with problems as individual pieces of casework. Denial of progression to one or two teachers this year will be followed by an ever increasing number of teachers losing out as time goes by if it is the result of unfair demands or inappropriate/discriminatory criteria.

Challenging pay decisions

This section advises on how to tackle common situations where members have to appeal individually against decisions to deny them pay progression. Refer to the NEU checklist in preparing yourself for any meeting – and use the NEU model letters to seek information about the policy and decision in order to help you challenge them.

The advice covers:

• Situations where governing bodies should be asked to set aside provisions of the policy because the progression criteria or system for reaching a decision were inappropriate;
• Situations where the decision in particular cases is challenged either on the basis of the evidence available or the way in which the criteria were applied;
• Situations where the decision should be challenged on the basis of potential unlawful discrimination; and
• The position of teachers applying to move to the Upper Pay Range. Before raising these arguments in an individual appeal, you should discuss the possibility of a collective challenge to the policy with members (see above).

Setting aside provisions of the policy

Challenging excessively demanding criteria

The NEU fears that some governing bodies may establish criteria which set much higher hurdles than previously for progression. NEU reps should ask, even before decisions start to be taken, whether the head teacher and governing body intend that rates of progression should be in any way reduced as a result of any new policy on pay progression.

The STPCD provides clearly that “continued good performance… should give [a teacher] an expectation of progression” (para 19.2). Criteria which set higher standards for progression than this will obviously offend against the STPCD’s statutory requirements. The use of criteria imposing standards of performance in excess of the level specified in the statutory provisions could be regarded as unlawful practice, adopted to ensure that teachers do not progress.

In such situations, you are challenging the criteria, not the decision – and asking that the criteria are set aside for all decisions because they are now seen to be creating unfair obstacles to progression and potentially leading to discrimination in some cases.

The NEU has seen a number of policies which include criteria saying that overall performance or teaching observations should meet standards which use wording such as “sustained high quality”, “outstanding”, “good with elements of outstanding” etc. All of these are inappropriate progression criteria to adopt in pay policies applying to classroom teachers. The criterion of “sustained high quality” appears in the STPCD pay progression provisions for leadership teachers, not classroom teachers. It has a different meaning to “continued good performance” and, if applied to classroom teachers, will put the governing body in breach of the STPCD’s requirements.

Other formulations such as “outstanding”, “good with elements of outstanding” or even “performance at the highest possible level” also clearly go beyond “continued good performance”. Similarly, teachers should not be expected to be “models of good practice” in order to achieve pay progression. Again this would lead to pay progression being the exception rather than the norm. Excessively demanding criteria should be challenged wherever possible through collective action rather than individual appeals.

Challenging use of the Teachers’ Standards as a checklist and/or use of Career Stage Expectations checklists

The NEU opposes the use of the Teachers’ Standards as a checklist, either during appraisal or during pay decision making. In the NEU’s view, assessment should start from the premise that the teacher is continuing to meet the Teachers’ Standards unless there is evidence to the contrary, in order that the appraisal discussion is not diverted away from the key issues and objectives identified at the initial appraisal meeting.

Some governing bodies, however, have been persuaded to adopt complex, but essentially meaningless, documents which purport to identify and define the precise levels of performance expected of teachers under each heading of the Teachers’ Standards and at each stage of their career (and sometimes even at each point on the pay scale). These are adopted for use either in the appraisal discussion or in subsequent pay decision making. The NEU rejects this approach which would reduce teacher appraisal to a tick box exercise, completely preventing professional dialogue on performance or professional development.

The NEU’s view is largely shared by the DfE’s pay advice which says that "It is not necessary for schools to adopt rigid models that seek to set out exactly what the relevant standards mean for teachers at different stages in their careers, and teachers should not be expected routinely to provide evidence that they meet all the standards". Your aim in such situations should therefore be to persuade the governing body to set aside the use of such checklists in taking pay decisions.

Again, excessively demanding criteria imposed through such an approach should be challenged wherever possible through a collective response rather than individual appeals.

Challenging quotas and relative performance judgments

The NEU opposes any rationing of progression via a provision allowing only a set percentage of teachers will progress. Setting quotas, or basing decisions on comparisons of relative performance as opposed to comparing it to absolute standards, will do just that. Although the DfE’s pay advice suggests that quotas or relative performance judgments could be considered appropriate in some schools, the NEU believes that these will necessarily conflict with the STPCD’s provision which requires governing bodies to allow progression to teachers on the basis of “continued good performance”.

Again, such an approach should be challenged wherever possible through collective action rather than individual appeals. Relative judgments will also raise the prospect of unfair and potentially discriminatory treatment of teachers, particularly in community schools or chain academies where teachers across a number of different schools share the same employer and are entitled to compare their treatment to that of teachers in those other schools. Teachers should not be denied progression simply on the basis of relative performance.

Challenging funding constraints

Funding problems at the school are not acceptable as criteria for denying pay progression – the NEU believes that every school governing body should have set a budget which provides sufficient funding for pay progression for every eligible teacher. The DfE’s pay advice says that in setting budgets, “schools should… take sensible financial decisions that take account of the likely cost of pay progression”. Again, such an approach should be challenged collectively wherever possible rather than forming the basis of individual appeals.

Challenging the evidence or the application of the criteria

Challenging decisions - evidence is important

The school’s pay decision must obviously be based on evidence. In most of the following situations, pay appeals will involve challenging the evidence put forward against teachers. Schools’ decisions should be firmly based on evidence - and only that evidence available through the appraisal process which is relevant to the appraisal process.

The DfE’s pay advice contains some important guidance on the use of evidence in appraisal and pay decisions which was produced in consultation with the teacher and head teacher unions. Any teacher who thinks they may face problems over pay progression should prepare for this by keeping evidence of their own, in relation to their objectives, their work and their wider contribution to the school.

You should not hesitate to challenge decisions by offering your own evidence, both about the areas covered by your objectives and appraisal, and where necessary about other areas of your work and involvement with the school as well, in order to convince governors that you have made the necessary contribution over the year. You should also have available your appraisal reviews and associated evidence from previous years. For example, if criticisms are voiced about pupil behaviour, you might be able to point to comments made in previous appraisal reviews or classroom observations about behaviour standards in class. If there are particular personal circumstances which may be relevant in appeal, such a personal illness or family circumstances, you may want to have evidence available in relation to these as well.

Below are list of decisions you can challenge:

• Challenging decisions using the “no surprises” principle.
• Challenging decisions that are not clearly based on appraisal evidence.
• Challenging decisions that set aside the appraiser’s recommendation.
• Challenging decisions based on moving the goalposts.
• Challenging decisions based on objectives.
• Challenging decisions based on student outcomes objectives.
• Challenging decisions based on lesson observations.
• Challenging decisions based on pupil or parent feedback.
• Challenging decisions based on requirements which teachers haven’t had the opportunity to meet.
• Challenging decisions that don’t take learning curves into account.
• Challenging decisions based on inappropriate expectations of UPR teachers.
• Challenging decisions based on a need for training.
• Challenging decisions on the basis of the financial impact of denying pay progression.

Challenging discrimination

Challenging decisions on the basis of potential unlawful discrimination

During the first years of the threshold application system, clear evidence of discrimination on the basis of race was found by DfE monitoring. The NEU fears that the Government’s reforms to teacher pay will lead to discrimination against many teachers on grounds of age, part time status, gender, disability, sexual orientation etc as well as on grounds of race.

Further NEU advice on identifying and tackling potential discrimination is set out in Appendix 2. If you believe that you have been discriminated against on these or any other grounds then you should specify this in your appeal, and you should also inform the NEU locally in such circumstances. Collective action would be the most appropriate response to systemic problems leading to discrimination.

The DfE’s pay advice contains guidance on monitoring equality issues in pay decisions. Governing bodies should be asked to record the steps they are taking to avoid discrimination in pay decisions and to disclose how and when they propose to monitor the effectivess of those steps. The DfE’s pay advice provides useful guidance on how to do this. Governing bodies should provide school-based data on the equality impact of pay policies. Employers with teachers in multiple workplaces such as local authorities and academy chains should produce regular reports on pay levels, pay progression and appeal outcomes across all the workplaces where they employ teachers. Where inequality in pay or pay progression is identified, the governing body or employer should take action to redress the inequality.

Criteria based on contribution to pupil activities beyond the normal working day would clearly unfairly disadvantage some teachers and might even constitute unlawful discrimination. Using such criteria would disadvantage teachers with family caring responsibilities and disproportionately affect women teachers. Similarly, criteria relating to contributions to meetings held outside the school day or “overall contribution to the school” should be challenged where they require significant additional work beyond the school day.

Challenging decisions to deny progression to teachers on maternity leave or extended sickness absence

The DfE’s pay advice says that "Where a teacher is away from school because of maternity leave, it is unlawful for the school to deny that teacher an appraisal and subsequent pay progression decision because of her maternity". Similar advice is given in respect of teachers on extended sickness absence. Such teachers must not be unfairly penalised in pay terms as a result of their absence.

Pay decisions must still be taken. If they were present for some of the year, then they should be assessed on the basis of their work during that period (with account taken of any impact on their work of their pregnancy or early stages of ill health). If they are absent for the full review period, the NEU argues that their previous pay recommendation should be the default position.

The DfE’s pay advice contains guidance on protecting the position of such teachers in its guidance on equality issues in pay decisions. It says that "Schools should consider conducting appraisals prior to individuals departing on maternity leave, even if this is early in the appraisal year, and basing any appraisal and pay determination on the evidence of performance to date in that appraisal year. Account could also be taken of performance in previous appraisal periods if there is very little to go on in the current year". With regard to extended sickness absence, the following paragraph says that "Schools should consider utilising the same range of options [as] for teachers on maternity leave".

You should also check what has happened to teachers who have recently returned from maternity leave or extended sickness absence. The DfE advice says that "When a teacher returns to work from maternity leave, the school must give her any pay increases that she would have received, following appraisal, had she not been on maternity leave" and advises similarly with regard to teachers returning from extended sickness leave.

Applications to be paid on the Upper Pay Range (threshold applications)

The STPCD includes more specific criteria about such applications (para 15) requiring the governing body to be satisfied that (a) the teacher is "highly competent” in all elements of the Teacher Standards / Practising Teacher Standards, and (b) the teacher’s “achievements and contribution… are substantial and sustained”. The pay policy should explain in more detail how the governing body will interpret these criteria and also explain the procedure and timetable for making and considering applications.

As noted earlier, the NEU fears that some governing bodies will establish criteria which will - by accident or design - set much higher hurdles than previously for progression. There is a danger that accessing the UPR will become much more difficult in some schools. NEU reps should again ask, even before decisions start to be taken, whether the head teacher and governing body intend that rates of progression to the UPR should be in any way reduced as a result of the new policy on pay progression.