Members of staff who underperform sometimes have a relatively short period of service. However, 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 of course 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. In previous years UPS3 teachers, black staff and women over the age of 50 were targeted disproportionately. Now, however, teachers and support staff across the board are reporting unjustified treatment. 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.

How is lack of capability defined?

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

What does it mean to be put on ‘informal capability’ procedures?

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 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 representative. The informal meeting should be considered a part of the appraisal process.

Can I be placed on formal capability procedures before I have had a period of informal support?

If you are placed on formal capability procedures, this should not come as a surprise. 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. It is only if you are deemed to have failed to improve, despite the support provided, that you may be placed on capability procedures. The NEU’s model capability policy sets out the union’s expectations in this (see further information, below).

What would be a reasonable timescale in which to show improved performance?

That would depend on:

  • how much needs to improve
  • how long it would take to put support measures/training in place
  • how much time has been available to judge the success of support measures/training
  • how many previous opportunities for improvement have been given
  • the impact of your alleged underperformance on pupils, colleagues and the school
  • your willingness to improve.

Changing a teaching style that has been shaped by thousands of hours of practice is not easy, even when being observed and tutored. Even very skilful members of staff find it difficult to adapt to the plethora of new initiatives directed at schools. In addition, once a class has been lost in terms of discipline, it is very difficult to get it back under control.

School policies may provide some guidance on what will be deemed a reasonable timescale in which to demonstrate improvement. The union advises that timescales should be used only as a guide. Otherwise, they may create a perception in the mind of the assessor that anything beyond the period stipulated in the policy is unreasonable. The NEU Model capability policy provides, in any event, 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, where appropriate.

My head teacher says they will dismiss anyone on capability procedures who fails to show improvement after four weeks. Can they do that?

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 therefore 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. Most members of staff do not fall within this category and a blanket policy of dismissal after four weeks is likely to give rise to unfair dismissal.

What measures should be included in a support programme?

That would depend on which aspects of your practice are causing concern. For example, if classroom control is an area in which your skills are said to be weak, it may be appropriate, as part of your support programme, to pair you with a person at your school, or at another school, who is acknowledged as particularly skilled in this area. You may also benefit from pupil behaviour training. Whatever measures are taken should be supportive and encouraging rather than undermining (eg having every lesson observed and assessed).

What if the support measures proposed are inadequate or inappropriate?

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 trusted colleague would make a significant difference to your practice, there is no reason why you should not make that request.

What should I do if my performance is being compared to the performance of others at my school?

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, either as a grievance or simply as a letter seeking clarification on the comments that have been made about your performance. You must be proactive in your efforts to get to the bottom of this, otherwise throwaway comments about your competence may quickly turn into capability procedures, particularly once school budgets dwindle. It is also important to recognise that this may represent a bullying style of management.

What should I do if I believe I am being bullied?

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, then the chances are that other members of staff feel the same way. The union has developed strategies at local level to deal collectively with bullying styles of management and these strategies should be deployed whenever there is consensus within a school that the senior management team, and the head teacher/principal in particular, have crossed the line between a robust management style and bullying. Useful resources are listed in the further information section below.

I've recently returned to work after a lengthy period of absence. I am now observed frequently and have received a judgement of ‘inadequate’. I’m afraid that I’ll be placed on capability procedures. What should I do?

The union takes a dim view of this kind of practice. Staff returning to school after a period of long-term absence should be given a reasonable period of time (eg 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 which your school is able to exercise some control over, you should be given time to re-adjust to your surroundings before your performance is assessed. In the circumstances, 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.

What procedural steps should be taken before I am placed on formal capability?

That would depend on the requirements of your employer’s capability procedure, but the NEU model capability 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.

What should I do once I’m on capability procedures?

The union recommends you take the following steps, even if your performance is being monitored on an informal basis:

  • Seek union representation as soon as possible if you have not already done so.
  • Ask that the matters discussed at every meeting be confirmed in writing.
  • Ask observers to provide feedback after every lesson observed.
  • Keep a record of the number of drop-ins and observations that take place during your review period.
  • If you do not have this information, ask for your pupil progress data for the last academic year, as compared with other classes in your key stage.
  • Ask whether your employer has equality impact assessed the capability procedure and, if so, whether you can have a copy of the results.
  • Take up any offer to contact your employer’s counselling service.
  • Seek GP advice: the stress of the capability procedure is likely to give rise to ill health – your GP may be able to recommend coping strategies.

Will capability procedures be mentioned in any future reference?

If you work in a maintained school (eg a community 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. Your school will also be required to provide written details of:

  • the concerns which gave rise to the capability proceedings
  • the duration of the proceedings
  • the outcome.

Even if you currently work in a non-maintained school (eg an academy, free school or sixth form college) your school may disclose matters relating to your capability in references, although they must be careful not to breach confidentiality or data protection principles when doing so.