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Competency Procedures and 'Questio Quid Juris?'

Discussion in 'Workplace dilemmas' started by Athena_Owl, Sep 24, 2009.

  1. 'Questio Quid Juris' is a latin phrase meaning "I question which law applies"

    The shorter version is "Questio Juris", meaning "What is the law?"

    What is the relevance to Competency Procedures? When a Competency Procedure is initiated this is done according to an established procedure, which you must be issued with a copy of. These procedures vary greatly between LEA's, some far harsher than others it would seem.

    In the main they address the pattern of review meeetings and hearings that must take place during the procedure, and the intervals between them during which you will be assessed, and they do this very clearly. However one thing they tend not to address, from what I have seen so far, is the question of what actually happens in order to determine if the teacher has fulfilled the targets that they have been set. Although this can include such things as book-scrutiny and analysis of results, it mainly seems to consist of formal lesson observations where a judgement is made as to the overall quality of teaching (None of this applies to informal "drop-ins", as they are not graded in this way).

    The question then must be asked: according to what procedure/protocol should these lesson observations be carried out? Every LEA will have an agreed lesson observation protocol for use in Performance Management, but does the same protocol apply to Competency Procedures? If so then a person on a competency procedure is guaranteed to be judged in the same way (bias on the part of the observer notwithstanding) as their colleagues.

    If it does not, then what does? In the absense of a lesson observation protocol that applies to competency procedures, a headteacher is authorised to do whatever they like with regard to lesson observations. But that cannot be squared with employment law, which requires due regard to such things as the Duty of care. This duty can only be discharged when a member of staff is treated in accordance with established, and agreed, procedures. Otherwise, if they come to harm as a result of their treatment, there is no possible defence by virtue of having acted in accordance with policy.

    So if you are on a Competency Procedure, and cannot confirm which Lesson Observation Protocol applies to that procedure, just ask "Questio Quid Juris?"
    What Law/Regulation/Policy applies to the conduct of lesson observations as part of this procedure?

    Don't assume that those who formulate policy will have thought of this. It seems to be the case that very often they have not, quite simply because very often those on Competency Procedures are too stressed to think of such questions, while their unions are often more concerned with following the line of least resistance, and getting them out on a Competency Agreement, than with addressing such legal questions.

    This is why you must insist on also being issued with a copy of the lesson observation protocol that will be used to judge your teaching. If the answer is anything other than "Here it is" or "I'll get you a copy" (Or any other answer that results in your getting a copy of it) then you are being subjected to a negligent procedure that cannot, legally, result in your involutarily losing your job.

    And that is regardless of your Competence, quite simply because an established test of that competence has not been applied.
     
  2. 'Questio Quid Juris' is a latin phrase meaning "I question which law applies"

    The shorter version is "Questio Juris", meaning "What is the law?"

    What is the relevance to Competency Procedures? When a Competency Procedure is initiated this is done according to an established procedure, which you must be issued with a copy of. These procedures vary greatly between LEA's, some far harsher than others it would seem.

    In the main they address the pattern of review meeetings and hearings that must take place during the procedure, and the intervals between them during which you will be assessed, and they do this very clearly. However one thing they tend not to address, from what I have seen so far, is the question of what actually happens in order to determine if the teacher has fulfilled the targets that they have been set. Although this can include such things as book-scrutiny and analysis of results, it mainly seems to consist of formal lesson observations where a judgement is made as to the overall quality of teaching (None of this applies to informal "drop-ins", as they are not graded in this way).

    The question then must be asked: according to what procedure/protocol should these lesson observations be carried out? Every LEA will have an agreed lesson observation protocol for use in Performance Management, but does the same protocol apply to Competency Procedures? If so then a person on a competency procedure is guaranteed to be judged in the same way (bias on the part of the observer notwithstanding) as their colleagues.

    If it does not, then what does? In the absense of a lesson observation protocol that applies to competency procedures, a headteacher is authorised to do whatever they like with regard to lesson observations. But that cannot be squared with employment law, which requires due regard to such things as the Duty of care. This duty can only be discharged when a member of staff is treated in accordance with established, and agreed, procedures. Otherwise, if they come to harm as a result of their treatment, there is no possible defence by virtue of having acted in accordance with policy.

    So if you are on a Competency Procedure, and cannot confirm which Lesson Observation Protocol applies to that procedure, just ask "Questio Quid Juris?"
    What Law/Regulation/Policy applies to the conduct of lesson observations as part of this procedure?

    Don't assume that those who formulate policy will have thought of this. It seems to be the case that very often they have not, quite simply because very often those on Competency Procedures are too stressed to think of such questions, while their unions are often more concerned with following the line of least resistance, and getting them out on a Competency Agreement, than with addressing such legal questions.

    This is why you must insist on also being issued with a copy of the lesson observation protocol that will be used to judge your teaching. If the answer is anything other than "Here it is" or "I'll get you a copy" (Or any other answer that results in your getting a copy of it) then you are being subjected to a negligent procedure that cannot, legally, result in your involutarily losing your job.

    And that is regardless of your Competence, quite simply because an established test of that competence has not been applied.
     
  3. snowstorm

    snowstorm New commenter

    How do you know about all this Athena Owl?
    I am interested in what you've said, but can you give links to the laws that apply?

     
  4. I'll have to do some digging, but all the educations act basically says, in one paragraph, is (paraphrase) "Local Education Authorities shall establish procedures"
    Each LEA's procedure is different (20 week informal stage in one LEA for example, I am informed), but all have a roughly common theme.
    But the issue that arises is what protocol should be used for observations. There cannot be no protocol, unless there is a specific law/rule/policy tat states that a headteacher can decide on their own lesson observation protocol.

    I have recently been told about an authority that does specify a protocol in its procedure (and I hope there are many others that do this). But it has not been used in some schools in that authority. Why is unclear.

     
  5. Just as an example, here is one Competency Procedure from Liverpool:
    http://www.liverpool.gov.uk/Images/tcm21-81316.pdf
    In the entire procedure there is one use of the word 'observation(s)' and 'lesson(s)' and no instance of the word 'protocol'
    If this is, indeed, a license for Headteachers to do whatever the hell they please to the subject of a procedure then that is very difficult to reconcile with the Duty of Care in my view.
    I look forward to the day that this point is challenged in law.
     
  6. snowstorm

    snowstorm New commenter

    Is there a 'duty of care' in schools? I'm very cynical about this and the day may come sooner rather than later when it is challenged in law.
     
  7. Thanks for your thoughts, wise owl.

    The number of instances of SM misusing Competency Procedures is surely on the increase. I found myself being threatened with these procedures recently. In my view, it had nothing whatsoever to do with lacking teaching skills but was part of a deliberate ploy to clear out the older, long serving members of staff from a school in Special Measures. I tried to search for more information on the LEA website and from my union rep but I never clearly understood what the protocol for such procedures would be. I felt I was powerless and in a no win situation. The feeling of dread because I did not understand what would happen to me when placed on Competency Procedures, coupled with the sure knowledge that when observed, my teaching would never be fairly judged, resulted in me running for the hills and never wishing to darken the doors of my place of work again.

    I really hope that for the sake of hard working teachers everywhere, SM and Governors everywhere clarify issues such as the school's Duty of Care, its policy on stress management for its staff and clear guidelines on the protocol for the very rare instances when Competency Procedures are set up to help, not terrify teachers.

    The Us and Them mentality is educational suicide, we need to work together for the sake of the children in our care.
     
  8. I can only applaud what you say here.
    The sure knowledge that many people will just run and the thought of what they will be subjected to amounts to notihng less than administrative terrorism in my view. In other words the deliberate use of fear to control and drive out staff.
    It is utterly despicable.
    Your experiences would be very welcome on the Teachers' Competency Network.
     
  9. Athena, I believe your point is absolutely valid. Have you read Ted Wragg's book "Failing Teachers?" He makes the point that once management has decided to get rid of someone, it is almost impossible for a teacher to be "perfect". There is always something about a teacher's performance which could be improved. However, others aren't judged in this way and weaknesses are seen as areas for development (as they should be).
    I was observed by my headteacher and judged satisfactory with good features. Allegedly, he used Ofsted standards. Nevertheless, I was still not taken off the informal stage of capability.
    Another area which needs investigating is support. As far as I can see, "support" has become a euphemism for harrassment. Competency procedures all seem to emphasise that the informal stage should be supportive, with the aim of bringing a teacher back on track. In my case, I listed the support I wanted (supported by OH), but this was refused, so my "support" ended up as frequent observations and meetings during my own time, during which I was criticised and shouted at. Who judges the quality of support?
    Every employer has a duty of care towards its employees and the HSE has even produced a document especially for stressed teachers. However, this seems was blatantly ignored in my case.
    I have come to the conclusion that there is no escape for a teacher once competency is threatened. It's a one-way ticket. It starts off as somebody's subjective opinion of another person and then the "procedures" are designed to facilitate management, so they don't break the law.
    I so wish I had the money to fight this through the courts and become a test case for others. Unfortunately, like others, I am accepting the compromise agreement and cutting free.
     
  10. I was never subjected to competency procedures prior to my dismissal but it certainly felt as if my professionalism and capability as a teacher was being attacked. The term 'capability' was used instead.
    I strongly believe that the LA put considerable pressure on my HT to dismiss me using their Sickness Code despite me being back at work for several months at the time of my dismissal. There seemed to be an urgency to get rid of me by the 31st May deadline. At my hearings it was repeatedly stated (in response to my questioning) that I was not at a disciplinary hearing and that my competency as a teacher was not in question. It fact it was established that competency was not an issue.
    This is my fourth week back at work and I am thriving as I tend to bounce back pretty quickly in the face of adversity. My consultant has even stated that I am obviuosly very talented and that the team is appointing a work person to help clients like myself.
    What I cannot allow my employers to lose sight of is the detrimental effect my dismissal has had on my health and well-being. Although I can get myself to work and perform as well as I have always done, I am unable to lead a normal life in terms of doing simple things like going to the supermarket on my own, attending my dance-class and going out socially on my own.
    I can't say I'm out of the woods yet and it is going to take alot of counselling to help me come to terms with the damage that has been done to my mental health.
    However, I will never never give up and will continue to fight for the right to work even if it means going to court some time in the future. Hopefully that day will never come, but if it does, hopefully it will help all those teachers out there who have been unfairly treated using competency procedures.
     
  11. gruoch

    gruoch New commenter

    Are you me? The minute I handed in my resignation, the weekly, short notice 'support' meetings stopped.
     
  12. No, I'm not you ~lol~. I guess heads learn to treat their staff like they've treated us on their head's course. Or maybe they pick up the behaviour on one of the frequent courses/conferences they attend while denying their staff external courses.
    The whole issue about support is sick. I was landed with all the bottom sets in my subject and asked for help. I identified a number of pupils who were making teaching impossible. All of these pupils had been identified by the school as problems. Instead of helping me with the pupils, I was blamed for not being able to establish a relationship with them. "We don't have discipline problems in this school, don't you know?" I was not allowed to observe other teachers with the same pupils because the cover would have been too expensive.
    To say I'm bitter would be an understatement. I was set up to fail. Once "capability" became an issue, there was no way I could show my strengths. My objection to the whole procedure is that other teachers are not subject to the scrutiny that a teacher on capability is. It is a bully's charter.
     
  13. This is the main fact that the whole process seems blind to.
    So then, how does one improve this system? Well, what about this:
    1) A decision to place a teacher on Competency has to be verified by an outside body. Perhaps even judged from start to finish. Thus removing the idea of a Head as Judge, jury and executioner.
    2) Observations for Competency have to be one the same basis as for Performance Management. If one cannot produce the required data neither can the other.
    3) Any assessment of capability has to take account of all available evidence, such as results.

    There are obvious ways to improve this broken and corrupt system. So why are they not used? One has to conclude other agendas are in play.

     
  14. I haven't but I will. As you say, for most teachers most of the time there is ALWAYS something that could be improved. And the current system places the goal-posts on wheels.

     
  15. derwood

    derwood New commenter

    Reading back through this thread I felt that it needed to go back to the top again. I feel that there has been such a jump in the numbers of teachers going through, or being threatened with competency in light of budget cut backs.
    At my own school I now know of eight members of staff being taken through Competency. The descisons were based on one 10 minute observation and a small number of visitis from SMT during their walkabout sessions. I have never worked out if this is legal as feedback from these sessions was never reported back. However my union has said that the head is completely in her rights to use this information for this means. The union has queired this at all.
    Three of the staff are from the same department, including myself, the second in charge and a new member of staff, who is actually a very good teacher and had been graded by a visitng HOD as a outstanding on the OFSTED scale. I agreed, yet les than three months later she is on CP. I feel their maybe a position for the HT daughter come June.
    I worry now for all these staff, yes I am one of them, that there is a hidden agenda and that the LEA and unions seem to be a part of it. If you read another thread of mine you will read how I bumped into our HT out to dinner with the school and local rep.

    Its seems to be that cut backs are in order and that this may be the cheap option as opposed to redunancy packages.
    In the meantime can anyone advise what teachers should be doing if they find themselves in this position? (And if they cannot trust the local and school rep who else can they turn to).
    Thanks to all.
    Derwood
     
  16. I identified a number of pupils who were making teaching impossible. All of these pupils had been identified by the school as problems. Instead of helping me with the pupils, I was blamed for not being able to establish a relationship with them.


    This is exactly what is happening to me.



    To say I'm bitter would be an understatement. I was set up to fail. Once "capability" became an issue, there was no way I could show my strengths.


    I even said those very words, I feel I was set up to fail, head wants me out and is using competency to do that.
     
  17. sorry meant to quote talulah-q - not sure how to do it!!
     
  18. The LAs in my area support the use of CP whether for backhanded or other reasons.
    In RL, no-one. I have heard a few stories on here of people getting through it but most people resign.
     
  19. derwood

    derwood New commenter

    This should be an area with one set of rules for the whole of the profession in the UK. It seems through reading these threads that the different LEA's have their own interpretation and use it to their own and the schools advantage.
    Can anyone share their knowledge of the following:-
    When should informal capability should take place eg. after one bad lesson, a run of failed lesson observations etc?
    and
    Should the teacher involved be told of any concerns before Informal competency is served on them? Should this be in writing?

    Regards
    Derwood


     
  20. Hi Derwood,
    Each LEA should have their own policy - some of these policies are available online.
    It's HT's discretion - some people are put on after one, some people can have 10 or more and not be put on! All the policies I have read refer to any concerns about the teacher's performance so your lesson observations could be fine but they could put you on because they don't think your marking is up to scratch. If you have other responsibilities e.g. subject leadership you could be put on for not doing well enough at that.
    No - I think putting you on informal procedures can be the first expression of their concern. I don't think it has to be in writing but obviously the move to formal procedures has to be.
    In truth, the rules are so vague that a HT (and it does have to be the HT) can put anyone on competency procedures that (s)he wants. They do it for one reason - they want you out.
     

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