GOVERNOR APPEAL GUIDANCE AND PROCEDURE VERSION NUMBER 1 LOCATION

2019 CRA EDITS BOARD OF GOVERNORS OF THE
26TH MEETING OF THE COUNCIL OF GOVERNORS
SCHOOL GOVERNOR SKILLS AUDIT NAME ……………………………………………………………………………………………………………………………………………… LENGTH

(A)LINDA LINGLE GOVERNOR INSTRUCTIONS FOR GENERAL APPLICATION CATEGORY I
04OCFSINF05 JUNE 18 2004 GEORGE E PATAKI GOVERNOR NEW
04OCFSLCM02 JUNE 4 2004 GEORGE E PATAKI GOVERNOR NEW

Section 2 Governing Bodies

Governor Appeal Guidance and Procedure

Version Number	1
Location	Guidance for Schools Volume 1 Section 2a
Author	HR Advisory
Published	August 2011.
SSE Review Date	September 2019
Effective Date	Formal Adoption by school
Consultation	This Procedure was subject to consultation and agreement with recognised Somerset schools trade unions. As such it is recommended for formal adoption by schools and academies.

CONTENTS

Governor Appeal Guidance

APPENDICES

Appendix 1 – Governors Appeal Procedure

Appendix 2 – Role of the Companion

Appendix 3 – Guide to the Conduct of Formal Hearings

1. Governor Appeal Guidance

1.1 The Headteacher and/or his/her defined representative(s), as determined by the Governing Body, should be responsible to the Governing Body for the day-to-day resolution of industrial relations problems, issues and matters within the school, to include dealing with routine disciplinary cases, the resolution of individual grievances and collective disputes. As members of the Governing Body will be the final arbiters in any personnel issue arising, it is considered that, in accordance with the rules of natural justice, they should not be involved in the initial attempts to resolve such issues.

1.2 A Committee/Board of the Governing Body (Personnel/HR Committee) should be established to deal with general HR matters, e.g. review of policies and procedures, recruitment and selection, contractual issues, hearing appeals from staff in respect of the nature/currency of written/final written warnings and hearing disputes/grievances which have not been resolved by the Headteacher or his defined representative, and determining staff to deal with disciplinary matters. It is recommended that this Committee should comprise a maximum of 5 Governors with 3/2 Governors constituting a quorum. If the Chairman of Governors is the Chairman of the Personnel Committee then it must be accepted that the Chairman will be disqualified from being a member of the Appeals Committee. Teacher Governors may be members of the Personnel Committee or Appeals Committee in hearing disciplinary/ grievance/disputes cases provided:

they have not been previously involved in the case;
it is not an issue connected with a colleague's pay; and/or

they cannot derive any benefit, no matter how remote, from the settlement of the case.

The Governing Body may, however, wish to consider the impact on staff relationships of having staff Governors ruling on disciplinary, grievances and disputes.

1.3 An Appeals Committee, excluding members of the Personnel Committee, should be established to hear employees' appeals against the decisions by the Personnel Committee and grievance/disputes decisions by that Committee.

1.4 Governors have the power to dismiss a member of staff and should delegate these powers to the Headteacher where appropriate. Therefore a “Staff Dismissal Committee” should be established to make decisions on dismissing staff. This Committee should usually comprise a minimum of 3 Governors (with a minimum of 2 Governors).

Appeals against decisions made by the Headteacher or Staff Dismissal Committee must be considered by a separate Committee with different members. The Staff Dismissal Appeals Committee cannot have fewer Governors than the Staff Dismissal committee.

The Headteacher cannot sit on either of these Committees as he/she is likely to have been involved earlier in the process.

In dealing with disciplinary/grievance/disputes matters, it is recommended that schools involve their HR Advisor.

Where a recommendation of dismissal is contemplated, it is advisable that the

HR representative is involved at investigatory meetings and at meetings of the Staff Dismissal Committee.

In Community and Voluntary Controlled Schools, the Local Authority has the right to send a representative and the Headteacher also has the right to be at any meeting to consider dismissal. However, for Foundation and Voluntary Aided Schools such a right only exists where an advisory right has been agreed by the Governing Body or determined by the Secretary of State. For academies there is no right for the Local Authority to be involved, but it is recommended that a HR Advisor is present to support the Governor panel.

1.5 If these recommended procedures are not accepted by the Governing Body, a local negotiation of acceptable procedures must be undertaken by the Governors with Teaching and Support Staff Trade Unions/Professional Associations.

Appendix 1

Governors Appeal Procedure

General

The Appeals' Committee of the Governing Body hears appeals by employees against the following:

A decision taken as a result of a disciplinary hearing involving a sanction imposed under the disciplinary procedure including dismissal. See paragraph 4.13 of Section 16 Disciplinary Procedure regarding grievances raised in the course of a disciplinary investigation or hearing.
The last stage of appeal in the Grievance Procedure.

Dismissal due to redundancy.

Warning or dismissal due to capability (including ill-health).
Dismissal due to some other substantial reason.
Dismissal during the probationary period (support staff).

Dismissal as a result of expiry of a fixed-term contract.

A decision of the Pay Committee of the Governing Body, or a decision of the Headteacher in relation to a Threshold / pay progression application.

A decision taken in accordance with the Leave of Absence Provisions.

A decision taken in response to a request for flexible working. See Section 9 Flexible Working Requests in relation to timescales for the Appeals Process.

A decision taken in relation to a Premature Retirement application.

2. Membership

The Appeals' Committee should not usually consist of fewer than 3 Governors and, in any event, not less than the number of Governors who comprised the initial panel or committee (where Governors made the initial decision), none of whom should be Governors or employees of the school who have a direct or indirect financial interest in the outcome of the appeal.

3. Administration

In maintained schools, the Committee will be given professional advice by a representative of the Local Authority, usually either an HR Advisor or a Solicitor* from the County Council Solicitor's Department. In some cases, it may be necessary for an additional Officer from the County Council to be present to advise on any professional issues arising during the appeal.

* Where the appeal is against an initial dismissal decision (for maintained schools).

4. Powers

The Appeal Committee can:

uphold the appeal;

in disciplinary and capability issues, substitute a lower warning and/or reduce the currency of the warning or delete the warning;

dismiss the appeal and uphold the initial decision.

5. Methods of Operation

Strict confidentiality will be observed with regard to the hearing and all related documentation.

The rules of "natural justice" will be applied as far as is possible for appeal hearings. Accordingly, the appellant can arrange to be represented or supported by companion (see Appendix 2); call witnesses and submit documents to the Committee.

Hearings are conducted as informally as possible within the guidelines set out below.

Action Prior to the Appeal

On receipt of the notification of appeal the Clerk to the Governors will:

except for appeals where a statutory time limit is specified, arrange for the appeal to be heard within 15 working days of it being lodged, if possible;

if this is not possible, inform the appellant of the reasons;

give all parties to the appeal at least 5 working days notice, in writing, of the time and place of the hearing;

invite brief written statements in support of their respective cases from the appellant and the Chair of the initial hearing indicating that the Clerk will circulate these to all parties plus any relevant documentation* used at the initial hearing with the agenda at least 5 working days before the appeal hearing;

table at the hearing any late documents received, subject to the agreement of all parties. However, this should be avoided at all costs as it may lead to lengthy recess to consider the impact of any such documents.

* The adviser to the Appeals Committee will contact the representatives of both parties in order to agree what, if any, additional documents from the initial hearing are to be included. Where there is disagreement, any disputed documents will be available separately at the Appeal Hearing and the Chair of the Appeals Committee will determine whether or not any such documents are admitted or referred to. Only agreed documents will be circulated prior to the hearing.

The Appeal Hearing

The conduct of any meetings held under the scope of this procedure will be as follows:

Preliminaries:

Confirm who will Chair the Hearing and that the Committee is eligible to hear the case in accordance with the relevant Procedure.

Invite both parties (the appellant and the Chair of the first Panel or Committee and the person who put the case to the first Panel or Committee) and their advisers/representatives to enter the meeting.

After introduction, ask both parties which of their representatives will be their chief spokesperson. The Chair will explain the purpose of the hearing, how it will be conducted, the role of the advisers, the powers of the committee and that either of the parties may request an adjournment at any time.

After explaining the procedure and securing their agreement to it, ask if either party has any preliminary comments before making their opening statements and presenting their cases.

The Procedure:

Invite the appellant or companion to make their opening statement setting out the grounds for their appeal and call witnesses if appropriate.

Where no witness has been called, the Manager may question the appellant or their companion on their case, or parts of it, once it has been presented.

Where a witness has been called and given evidence, the Manager may cross-examine the witness. The appellant or their representative has a right to re-examine and ask questions on any matter, arising from the cross-examination. The Committee may ask questions of the appellant or their representative and their witness. The Manager has a right to re-examine and ask questions on any matter, arising from the Committee’s questions.

Invite the presenting Manager to make their opening statement and to call witnesses, if appropriate.

Where no witness has been called, the appellant, or their representative, may question the Manager on their case, or parts of it, once it has been presented.

Where a witness has been called and given evidence, the appellant or their representative may question the witness. The Manager has the right to ask questions on any matter arising from the appellants questions.

The Committee may ask questions of the Manager and their witnesses. The appellant or their companion has a right to ask questions on any matter arising from the committee’s questions.

Witnesses will leave the room after having given, or having been questioned on, their evidence. Whilst witnesses are normally only required to be present whilst giving evidence witnesses may remain throughout the hearing at the discretion of the committee e.g. where it is felt this may assist either party in the presentation of their case to the hearing. However, due care will be taken by the committee to ensure that any use of this discretion does not comprise or impede either side’s case or any individual witness evidence.

There should be no discussion on the case or associated matters between the witnesses before or after giving evidence.

At the discretion of the Chair of the Hearing, further questions by one part of the other may be permitted if, in the view of the Chair, it would assist in clarifying the relevant issues or eliciting further evidence.

Invite the presenting Manager to make their closing statement.

Invite the appellant or their representative to make their closing statement.

The Committee may ask further questions of the Manager and/or the appellant or their representative.

The Appeals Committee will pay particular attention to any new evidence that has been introduced, consider it carefully and ensure that both parties have had a full opportunity to comment upon any such new evidence before any decision is taken.

The meeting will be adjourned and both parties will leave the room to allow the Appeals Committee, with the Local Authority representative(s) present to advise, to reach their decision in private. The Appeals Committee can recall either party to clarify any points of uncertainty on evidence already given. If such a recall is necessary, both parties will be asked to return, even if only one party is concerned with the point requiring clarification.

Both parties to be invited back to hear the Committee’s decision.

No further discussion or debate will take place.

The decision will be confirmed in writing within 5 working days.

The Decision

The Appeals Committee will examine all of the issues fully before reaching a decision.

The Appeals Committee will not use new information coming to light at the appeal hearing to justify a new reason for the initial sanction in substitution for the original one.

Following the adjournment, the Chair of the Committee will inform both parties of the decision reached. This will be confirmed in writing by the Clerk to the Governors.

The Appeals Committees decision is final and, therefore, there is no further appeal process except where the matter that is the subject of the appeal is one where a further and final stage of appeal to another Governors Committee is provided for. The Chair of the Appeal Committee will make it clear, at the outset if this is the case.

Appendix 2

Role of the Companion

A companion can be:

a colleague;
an official employed by a trade union;
a workplace-based trade union representative, certified in writing by the trade union as having experience of, or having received training in, acting as a worker’s companion at a disciplinary or grievance hearing.

The companion will be allowed to address the hearing in order to:

put the employee's case and ask questions on behalf of the employee;
sum up the employee's case;
respond on the employee's behalf to any view expressed at the hearing;
confer with the employee during the hearing.

The companion has no right to answer questions on the employee's behalf, to address the hearing if the employee does not wish it, or to prevent the employee from explaining their case.

Appendix 3

Guide to the Conduct of Formal Hearings

Where formal hearings are held the following has been agreed between Somerset County Council and recognised Trade Unions as a guide to the Conduct of Hearings held under formal HR Procedures.

This guide should be read in conjunction with the relevant HR policy or procedure which is being followed.

1. Somerset County Council will adopt this protocol for centrally employed teachers and recommend it as best practice to academies and schools with delegated budgets to be adopted along with other HR Procedures.

2. Where staff are subject to any formal procedure they should be provided with a copy of that procedure at the earliest opportunity.

3. At the outset of any formal procedure staff should be advised to contact their Trade Union or Professional Association (if a member).

4. Where subject to formal procedures staff should be granted reasonable time, upon request, prior to any formal hearing or appeal, to consult with their Trade Union / Professional Association.

5. All parties should make every effort to hold / attend meetings as quickly as possible avoiding undue delays.

6. When Governors panels are holding formal hearings or appeals they should ensure that all members are impartial. Selection of the panel members would normally be done by either any pre-arranged criteria or the Clerk to the Governing Body. Members of the panel should not, under any circumstances, be appointed by the presenting Manager / Governor.

7. The panel should take account only of the information presented to it as part of the hearing and should not refer to, or use to influence its decision, any pre-existing knowledge or belief about the issue the panel may have.

8. Wherever possible, hearings should be held in the normal school day. Consideration should be given to any requests to hold hearings at “neutral” venues.

9. When it is agreed that a hearing will take place outside of the normal school day then the anti-social nature of this timing should be recognised and minimised, for example having clear cut-off points for the hearing unless all sides agree to continue beyond that time.

10. Estimates should be made of the length of any proposed hearing and appropriate adjournments / breaks identified.

11. Venues should be fit for purpose, having appropriate access and space and areas for both the employee and their representative and the presenting Manager to adjourn for confidential discussions.

12. For hearings that are anticipated to be lengthy, attempts should be made to avoid witnesses to be in attendance for longer periods than they are needed.

13. All documents used at the hearing should be appropriately labelled and numbered.

14. Any panel should have read the appropriate procedure and any pre-circulated documents prior to the hearing.

15. If adjournments or appeals are necessary then consultation will take place with the employee’s representative over mutually convenient dates.

16. Once a member of staff has identified the union representative who will be supporting them through a formal procedure, the documents sent to the member of staff related to that procedure should also be sent to their representative.

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