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Dear Stephen and all: advice required on HR law re clerk

Discussion in 'Governors' started by Ickar, Mar 20, 2013.

  1. I am a CoG. My HT has suggested that it might be a better way forward for us to have an agency clerk rather than the clerk directly employed by school on a zero hours contract. HT feels that this would be easier in terms of performance management and administration involved in processing hours claimed by current clerk. I disagree, especially as the burden of PM of the clerk isn't the HT's (it's mine and really it's minimal!). As a paper exercise. I've started looking into the comparable costs (although don't have all the figures yet). The HT & I also disagree about who employed the clerk (and by extension who can make this decision): I maintain it was a GB appointment (2 former governors did the interviews and selection); they say it an operational school matter and not under GB juristiction.

    I VEHEMENTLY do not want to lose the clerk we have, they are worth every penny in my mind, even if they cost slightly more than an agency clerk, which I doubt it will be. I suspect we are under-paying them and frankly they've had a raw deal over the years. This has come about because the clerk has said during the PM discussion, extremely tactfully, that they think probably they should be allowed more holiday days pay as they've been working at the school now 7 or 8 years and, if this is the case could it be looked into and amended.

    My question: If the HT gets their way would this mean making the current clerk effectively redundant (and associated costs of that) and secondly: if the role is made redundant, isn't there a law to the effect that you can't fill recently-redundant roles with contract staff (as otherwise technically the role is actually not redundant!)?

    Looking for help please with HR law and any financial reasons to convince HT this is not a move we want to make. Genuinely, we would be a poorer GB for their loss. Unrelated: how on earth do I put paragraphs in this message?
     
  2. I am a CoG. My HT has suggested that it might be a better way forward for us to have an agency clerk rather than the clerk directly employed by school on a zero hours contract. HT feels that this would be easier in terms of performance management and administration involved in processing hours claimed by current clerk. I disagree, especially as the burden of PM of the clerk isn't the HT's (it's mine and really it's minimal!). As a paper exercise. I've started looking into the comparable costs (although don't have all the figures yet). The HT & I also disagree about who employed the clerk (and by extension who can make this decision): I maintain it was a GB appointment (2 former governors did the interviews and selection); they say it an operational school matter and not under GB juristiction.

    I VEHEMENTLY do not want to lose the clerk we have, they are worth every penny in my mind, even if they cost slightly more than an agency clerk, which I doubt it will be. I suspect we are under-paying them and frankly they've had a raw deal over the years. This has come about because the clerk has said during the PM discussion, extremely tactfully, that they think probably they should be allowed more holiday days pay as they've been working at the school now 7 or 8 years and, if this is the case could it be looked into and amended.

    My question: If the HT gets their way would this mean making the current clerk effectively redundant (and associated costs of that) and secondly: if the role is made redundant, isn't there a law to the effect that you can't fill recently-redundant roles with contract staff (as otherwise technically the role is actually not redundant!)?

    Looking for help please with HR law and any financial reasons to convince HT this is not a move we want to make. Genuinely, we would be a poorer GB for their loss. Unrelated: how on earth do I put paragraphs in this message?
     
  3. Can't help with the clerking but to do a paragraph insert the less than sign and then p and then the greater than sign. Good luck with your situation.
     
  4. re the clerking question: would the website called 'clerk to governors' have any useful information about who is the employer?
     
  5. montiagh

    montiagh New commenter

    The appointment of the clerk is for the whole governing body to decide. It is also for the GB to decide what happens to this clerk. Do they have a contract, what does it say, what else if anything do they do for you in school.In terms of clerk costs there are LA Clerks, independent clerks and in house clerks. The appointment of clerk should be renewed or not at the first meeting of each year as a standing order. What does your terms of office say?
     
  6. Rott Weiler

    Rott Weiler Star commenter Forum guide

    I agree with Montiagh other than his suggestion that "The appointment of clerk should be renewed or not at the first meeting of each year as a standing order." I can't think why anyone would want to do that, it's not required.
    The HT is getting involved in things that aren't the HT's responsibility. The Procedures Regulstions say it is the governing body who appoints the clerk (regulation 8 (2) "The governing body shall appoint a clerk to the governing body"). You could appoint a clerk as an employee under a contract of employment with the school, or as a self-employed independent contractor, or you could contract with an education services company or LA to provide clerking services. If you go Contract of Employment route it's a GB appointment, not the head's, as <u>all</u> staff appointments are formally the responsibility of the governing body. The GB can and usually does delegate staff appointments below leadership group to the head. I wouldn't expect or recommend appointing clerk to be delegated to HT but it could be. The power to remove the existing clerk is the same - regulation 8 (5) "The governing body may remove the clerk to the governing body from office", but this is qualified by regulation 8 (1) "This regulation is without prejudice to any rights and liabilities which the clerk may have under any contract with the governing body", ie, if clerk is an employee they are still entitled to their normal employment law rights, if they are employed under an independent contract any dismissal is subject to the terms of the contract.
    The head's assertion this is an operational matter is simply wrong. The claimed reason of head for wanting to change it sounds implausible. Is there a 'real reason' underneath it? Does the HT want to get rid of the current clerk?
    You could change the status of the current clerk with their agreement but I don't think you could easily dismiss her and replace her with an agency clerk unless she's willing to accept compensation to go. You don't make people redundant, you make posts redundant. Since there's only one Clerk's post and by law you must have it how could you make the post of clerk redundant? (You could probably find a way to make the post redundant if you really wanted to but it would be legally risky - but you don't want to!) Clerk could be dismissed for misconduct or capability but neither of those seem relevant.
    Sounds like the GB wants to keep the current clerk and current arrangements. Politely tell the HT to butt out! It's up to GB, not head.
     
  7. harsh-but-fair

    harsh-but-fair Star commenter

    I agree with Rott, entirely.
     
  8. grrmummy

    grrmummy New commenter

    RW is entirely right. It is the post not the person who can be made redundant and even then only as part of an agreed and properly structured process of staff rationalisation.
    Even if the appointment of Clerk to the GB had been delegated to the HT (and it doesn't appear from what you say that it was) I imagine that the Clerk was appointed on a permanent contract? If not then there may be some wriggle room for the HT to try to oust someone they would prefer not to have in post.
    If I were you I would fight to keep this Clerk as s/he sounds like a real asset to the GB if s/he has already demonstrated his/her willingness to advise governors appropriately rather than just agreeing with the HT. Not all Clerks would have been able to do this.
    Hope it all works out [​IMG]
     
  9. grrmummy

    grrmummy New commenter

    The other thought that occurs to me is that current thinking favours professional clerking. I think you would be hard pushed to get this level of service through an agency given the need for continuity and knowledge of an individual GB. IMO much of the sucess or otherwise of a GB lies with the clerk and the contribution they make to effective governance should really not be underestimated
     
  10. The clerk is the clerk to the governing body, not the headteacher. Assuming that you are an LA maintained school then, the School Governance (Procedures) Regulations 2003 (Reg 8) set out that the governing body is responsible for appointing and removing the clerk to the governing body.
    There does not appear to be anything in the Procedures Regulations to prevent this being delegated to an individual governor, the headteacher or a committee, but any delegation needs to be confirmed annually, regardless of whether the original appointment was delegated. Even if the governing body has delegated a function it is always entitled to take it back and deal with the issue as a full body. A good clerk is worth her/his weight in gold and can make a significant contribution to the effectiveness of the governing body, so If you have a good clerk I would strongly advise you to keep her/him. I do not profess to be an HR expert, but it is my understanding that you cannot simply decide that you want person A rather than person B to carry out the same post.
    The governing body's responsibility for appointing and removing the clerk do not over-ride employment law - a fact which the Procedures Regulations make clear - stating "This regulation is without prejudice to any rights and liabilities which the clerk may have under any contract with the governing body or with the local education authority."
    It does not sound as though you wish to remove the clerk so this may not be an issue, but If you were to consider replacing the clerk then you need to seek professional HR advice before taking any action - the governing body should have access to this either through the LA or a private provider.
    Stephen Adamson
     
  11. Thank you davy lamp - I can now do paragraphs!To everyone else who replied, including Stephen, my sincere thanks for taking the trouble to assist me on this. Your assumptions are right - I absolutely do not wish the current Clerk to leave and believe that on all grounds (employment law/moral/practical/financial) the HT now clearly understands that changing the current situation is not possible or desirable unless the FGB wills it.We do need to amend our terms of reference to make it explicit to whom the PM of the Clerk is delegated and I will have that on the agenda of the next FGB meeting. We use LA-derived constitution documents and it's definitely not written in there so I will contact our LA to let them know that they may wish to inform other GBs. Thank you also for the references regarding the Procedures law and the clerk website, they were extremely useful.Kindest regards.
     

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