It is unlawful to deny a teacher an appraisal and subsequent pay progression decision simply because of her absence on maternity leave. If the date the pay increase is due falls during the maternity pay period (i.e. 1st September in maintained schools) then the pay increase should be applied from that date.
Schools need to take a practical and flexible approach to conducting appraisals and making pay decisions for those absent on maternity leave, including where a teacher has been absent for part or, more unusually, all of the reporting year. 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. Take account of performance in previous appraisal periods if there is little or nothing to go on in the current year. Don’t forget also that teachers on maternity leave can use a ‘keeping-in-touch’ day to attend an appraisal or performance review meeting, provided both parties agree.
If there has been no significant change to the job role or school circumstances since the pay range was set then the pay ceiling for that role has been met and there is no scope to make additional payments. No employee should have an expectation that their salary will increase year-on-year indefinitely. Consideration could be given to a ‘non cash’ benefit or reward if merited, although you will need to ensure any tax implications are taken into account and whether it is justifiable to offer an additional reward to one member of staff and not others. In maintained schools it is no longer possible to award retention allowances to members of the leadership group.
If and when senior pay ranges are reassessed, governors should review the pay of all leadership pay ranges at the same time to ensure they remain equitable and appropriately positioned alongside classroom teachers’ pay. Consideration should also be given to the appropriateness of senior salaries when compared to posts at similar schools (recruitment advert data, for example, may help with this).
"Transparency is a key feature of well-managed performance-related pay systems: employees should understand how decisions affecting their own pay have been reached as well as the general policy of the school regarding how performance and pay are linked"
The Equality Act 2010 provides that an employer cannot prevent their employees from making a ‘relevant pay disclosure’ to anyone, and cannot prevent employees from seeking such a disclosure from a colleague, including a former colleague. A relevant pay disclosure is one that is made (or sought) for the purpose of finding out whether or to what extent there is unlawful pay discrimination. In seeking to prevent such a disclosure, or taking action against an individual for making a disclosure, an employer will expose itself to the risk of a victimisation claim in the employment tribunal, for which unlimited damages can be awarded.
This provision does not, of itself, prevent employers from prohibiting its employees from disclosing their pay to colleagues where such discussions do not relate to possible pay discrimination (e.g. if they are simply disappointed with their own pay award and what to find out what others received).
Transparency is, however, a key feature of well-managed performance-related pay systems: employees should understand how decisions affecting their own pay have been reached as well as the general policy of the school regarding how performance and pay are linked. There should, therefore, be no need for draconian measures seeking to prevent employees discussing their pay with others where this is undertaken between the parties voluntarily. Teachers should feel empowered to say if they don’t want to discuss their salary with colleagues and for that to be accepted by others. It may be advisable to remind staff about this in their pre-appraisal briefing.
Sometimes, in all the circumstances, a teacher may not have fully met the criteria for pay progression but there are good reasons why progression should not be withheld. Questions that may help you to determine whether this is the case might include:
A well-drafted pay policy should allow some room for discretion. In particular, a teacher should not be penalised for shortcomings in the performance management and review process itself (for example where objectives were not adjusted following a long period of absence). In the interests of fair treatment it may sometimes be appropriate to award pay progression in such circumstances where the criteria has not been fully met. The decision to do so, and reasons behind it, should of course be clearly documented. This should be a rare situation, however, and if it begins to occur more regularly this would suggest there are wider failings in the performance management process which need to be looked at.
Despite the legislative requirement to undertake teacher appraisals in maintained schools it is, unfortunately, not unheard of that appraisals are not taking place in some schools. Clearly the starting point is to audit - as far as reasonably possible - what has taken place and when, as well as what relevant policies and procedures are in place, if at all (starting with the appraisal policy and pay policy). If there is no system in place you may have to start from scratch in implementing a new appraisal and performance-related pay scheme. Teachers in maintained schools (and other settings depending on contracts) have a contractual entitlement to be considered for pay progression with effect from 1st September each year. You may have to seek to draw a line under previous years by considering whether accelerated pay progression is necessary, however you will want to gain a good understanding of current staff performance first and this may take time if not much evidence has been collected in this year or previous years. If your appraisal year is starting in September or October, ensure that appraisal meetings take place promptly at the start of this period, even if you have to treat this as an interim meeting pending the development of, and consultation upon, the new appraisal system you want to introduce. The importance of consultation cannot be overstated: it is very likely to be a requirement of union recognition agreements in place and, notwithstanding this, you need the engagement of teachers and appraisers to make it work. Don’t forget to train your appraisers thoroughly if you are delegating responsibility for appraisal to line managers. You may want to take HR advice to help you develop an action plan.
|"Negative assessments of performance are understandably an emotive issue for many employees but it is important that the teacher is as clear as possible about the grounds on which he is unhappy"|
Check what your appraisal policy says about appeals, if anything. There is no obligation to offer an appeals process when a teacher is unhappy about his appraisal outcome (unless the policy states otherwise), but if the report has impacted on his pay progression then he will very likely have the right to make an appeal under your pay policy anyway. This is required in settings where the School Teachers’ Pay and Conditions Document applies, and is extremely commonplace in the policies of other settings too. Notwithstanding this right, if his pay is unaffected (for example, he is at the top of his pay range already) but he believes he has been treated unfairly he can raise a grievance. The bottom line is there will be a mechanism for him to air his concerns, usually involving an informal stage first, followed by a more formal stage and right of appeal.
It is always preferable for such disputes to be resolved informally where possible as the more they escalate the harder it can be to avoid a detrimental impact on working relationships. However negative assessments of performance are understandably an emotive issue for many employees and it can be hard to assuage their unhappiness where a judgement on performance, however negative, has been made in good faith and based on solid grounds.
In reviewing your own decision and in defending it in any subsequent appeal, it is important to focus on objective evidence as much as possible, double-check that the comments and ratings were fair when compared to the expectations of other teachers at a similar career stage and that any extenuating circumstances were given due consideration. It is important that the teacher is asked to be as clear as possible about the grounds on which he is unhappy: simply not agreeing with the judgement made is not sufficient to give his concerns due consideration.
For the format of any appraisal/pay appeal or grievance, make sure you refer to the relevant adopted policy and adhere to the provisions within it, including allowing him the right to be accompanied.
Appraisal training is one of our most popular training offerings, reviewing key aspects of appraisal within the overall context of policies, the regulations (where applicable) and professional/occupational standards. Course delegates will have the opportunity to discuss and explore the role and responsibilities of the appraiser and appraisee and practice setting robust objectives.
We can deliver in-house training on this, and a range of other employment-related topics, to a single school/college or groups of schools (e.g. in a MAT) at a time to suit you and adapted to your particular needs.