Prepare to battle performance-pay - collectively, not individually

When teachers return to school for the new academic year, we face a new threat: the threat that some colleagues will not be awarded annual pay progression based on their ‘performance’. Teachers and their union groups must resist this threat collectively.

Up to now, it was rightly understood that, at least on the main scale, teachers should expect to progress up the pay scale towards M6 based on their addition of a year’s experience. We must set the tone from the start of term that this expectation should remain this year too.

The introduction of the ‘threshold’ and the Upper Pay Scale in 2000 means that teachers already have experience of how performance-management targets can be used to block pay progression. Often introduced fairly benignly at first in most schools, many teachers have seen the expectations being made on teachers to progress to U3 become increasingly harder. We must not allow the same barriers to be placed on main scale progression.

If we are to succeed in defending teachers, especially those on the main scale, then teachers must approach performance-pay decisions as a collective issue. Too often, teachers who were denied progression to or up the UPS felt that this was an ‘individual’ issue that they had to struggle with on their own. Teachers must feel confident to share their situation with colleagues – and colleagues must stand together to defend each other.

Union groups should make clear that they are prepared to request support for strike action if colleagues are denied pay progression up the main pay scale. That may seem a big step to take but, if left to individual appeals only, teachers will start to be picked off and performance pay will start to divide and demoralise staff. It’s far harder to pull things back once implemented. That’s why a firm stand must be taken now. Such local action must be taken alongside ongoing unifying national action to reverse the new performance-pay regulations entirely.

Preparing for strike action doesn’t mean that teachers shouldn’t also pursue internal pay appeal mechanisms. In fact, pay appeals can help expose the divisiveness and unfairness of performance-pay decisions and give Governors an opportunity to correct such unfairness. However, while well-prepared appeals can win, they certainly have a lot more chance when backed up by the threat of collective action!

The NUT has already issued initial advice on pay appeals and pay polices (to be found via http://www.teachers.org.uk/paytoolkit) and there will be more advice, briefing materials, model letters etc. to follow at the start of term. This will be a task that individual school groups and reps will need to take on as the volume of appeals could well be far too great for Local Association officers to take on alone.

Local NUT officers will obviously be on hand to advise but school reps and are often in the best place to advise on pay appeals as they will know the context of the school and its policies better than a local officer.

Reps should start the term by asking for the latest copies of the pay and appraisal policies applying in their schools, as different schools will have adopted different policies. There may well be some useful sections in school policies that can be used to defend teachers.

The National NUT advice also refers to three new DfE guidance documents published last term. While these documents, arising from talks between the DfE and the teacher unions, are still very much in line with Government policy, they do offer some useful points in particular on evidence requirements during appraisal and on pay portability. They are a limited gain secured by NUT members’ ongoing strike action (See documents in full via www.teachers.org.uk/payandconditions/pay ).

Potentially useful phrases for pay appeals from the DfE documents include: 

a) The use of evidence in appraisal and pay decisions
 
“It would not be appropriate for schools to introduce evidence requirements that are not directly and explicitly related to the formal appraisal process and with the objectives and standards that have been agreed with the teacher” (para 4).

“The appraisal process should be supportive and developmental and the school’s pay and appraisal policy should set out clearly how the outcome of the appraisal process will feed into pay decisions. The school should manage the appraisal process so that there are no surprises at the end of the year – throughout the appraisal cycle both the teacher and line manager should understand what objectives are in place, the evidence that will be used and the criteria to assess performance, and progress towards meeting these” (para 6).

“Schools should provide feedback where necessary during the course of the year on the areas where the teacher might need to improve in order to secure a positive assessment at the end of the appraisal period” (para 7).

“Under the Regulations, teachers’ performance must be assessed against the relevant standards and against their individual objectives. For the majority of teachers in maintained schools in England, the relevant standards are the Teachers’ Standards, and in Wales they are the Practising Teacher Standards (para 10) [BUT!] ... 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” (para 11). 

b) Equalities considerations as part of the appraisal and pay determination process

“When formulating pay policies and making pay decisions schools should take care to avoid discriminating against teachers on grounds of their protected characteristics. They should also ensure that part-time teachers and fixed-term teachers are not treated less favourably” (para 2).

“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. 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” (para 11).

“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 all of the reporting year” (para 12) ... 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” (para 13).

“Schools should ensure that their pay and appraisal policies incorporate any adjustments which can reasonably be made to give a teacher who is absent for disability related reasons an equal opportunity to participate in appraisal and to access pay progression (para 14) ... When a teacher returns to work to work following a disability related absence, the school must not refuse a pay increase that the teacher would have received, following appraisal, had he or she not been absent for a reason related to disability, if the reason for the refusal is the teacher’s disability or the refusal cannot be objectively justified (para 15).

“Even where individual schools have robust pay policies in place and make pay decisions for individual teachers that are compliant with the direct discrimination provisions in the Equality Act, there is still the possibility for equal pay issues to arise. This may be where, for example, teachers seek to demonstrate that the pay policy in one school disadvantages teachers in that school compared to teachers in another employed by the same employer” (para 16).

c) Managing appeals against pay determination

School reps should check the procedure for pay appeals set down in their school’s policies. They should at least allow the three stages set down in this final one of the three DfE advice documents (which usefully allow teachers to appear before governors and present their views before final decisions are taken) :

Stage one – informal discussion with the appraiser or headteacher prior to confirmation of pay recommendation: a teacher who is dissatisfied with a pay recommendation has the opportunity to discuss the recommendation with the appraiser or headteacher before the recommendation is actioned and confirmation of the pay decision is made by the school.

Stage two – a formal representation to the person or governors’ committee making the pay determination: if, having had an informal discussion with the person making the pay recommendation, the teacher believes that an incorrect recommendation has been made, he/she may make representation to the person (or governors’ committee) making the decision. To begin the process the teacher should submit a formal written statement to the person (or governors’ committee) making the determination, setting down in writing the grounds for not agreeing with the pay recommendation; the teacher is given the opportunity to make representations, including presenting evidence, calling witnesses and the opportunity to ask questions, at a formal meeting with the person (or governors’ committee) who will make the pay determination.

Stage three – a formal appeal hearing with an appeals panel of governors: should the teacher not agree with the pay determination, the teacher may appeal the decision and have an appeal hearing before an appeals panel of governors (who were not involved in previous discussions regarding the teacher’s pay determination and should be familiar with the school’s pay and appraisal policies); In the hearing before governors, both the teacher and the management representative will have the opportunity to present their evidence and call witnesses, and to question each other.

In conclusion, the detail above can all help to use pay appeals – and the threat of pay appeals - to put pressure on school managements not to inflict the damaging divisiveness of performance-pay on their schools. However, it will be a collective dispute with staff as a whole standing together to defend colleagues that will best defeat performance-pay.