What this Briefing Note will cover
- STPCD – School Teacher’s Pay and Conditions Document
- Statutory requirements relating to pay
- Performance related pay and pay progression
- Impact of Covid-19 on 2019/2020 appraisal cycle and looking ahead to 2020/2021
The STPCD
The STPCD is a statutory framework, encompassing guidance (which maintained schools and local authorities must have regard to), for teacher pay and conditions of employment in maintained schools in England. Academy trust companies are not statutorily bound to adopt the STPCD for teachers in their academies but many trusts do, with or without amendment. Where a maintained school has converted to an academy and joined a trust, the pay and conditions of those staff that transferred will have their STPCD pay and conditions protected by virtue of TUPE. Therefore, it is likely that a significant proportion of academy trusts will be bound by the STPCD despite it not applying to them, on the face of it.
For the purposes of this note, it is assumed that the STPCD applies to academy trust companies and references to ‘governing body’ includes the governing body of a school with a delegated budget and the board of directors of an academy trust company, or a committee thereof (where appropriate).
Statutory policies relating to pay
The STPCD stipulates that every governing body must have a written pay policy which sets out the basis on which it determines teachers’ pay and a date by which teachers’ will have their pay reviewed. This should be linked to the school/academy appraisal policy and both policies should be reviewed annually.
The process of appraisal for teachers in maintained schools is set out in The Education (School Teachers’ Appraisal) (England) Regulations 2012. The DfE’s Advice, ‘Staffing and Employment Advice for Schools’, which applies to maintained schools and academy trusts, provides that academies are also expected to adopt an appraisal policy but are free to set their own terms and are not bound by the requirements in the 2012 Regulations. In practice, most academies appraisal policies look similar to those for maintained schools, particularly where, for example, the academy is a former maintained school.
Our dedicated Schools HR team are able to provide tailored pay and appraisal policies that are linked to ensure that decisions on pay reflect statutory requirements (where appropriate) and best practice within the education sector.
Where maintained schools convert and join a trust, or single academies join a MAT, we are often instructed to address issues of inconsistency in relation to pay decisions, pay arrangements and appraisal procedures made at the local school level. It is important to remember that a MAT is the employer of all staff across all schools/academies and, as such, policies, procedures and decision making should be consistent in order to withstand scrutiny and challenge, and, where possible, to avoid claims relating to, for example, equal pay, discrimination, detriment etc.
Performance Related Pay (PRP)
From 1st September 2013 all pay progression for teachers was required to be linked to an individual’s performance, rather than simply to their length of service. The purpose of these changes was to create a culture whereby schools were able to pay teachers in line with their performance rather than every teacher progressing at the same rate. This change also meant that the most successful teachers would be able to progress faster.
Pay Progression
The STPCD sets out the process for pay progression through the different pay ranges and stipulates that the governing body must make an assessment of whether to increase a teacher’s salary on an annual basis and, if they do decide to award an increase, the salary that has been awarded within the relevant pay ranges. A decision whether or not to award pay progression must be clearly attributable to the teacher’s performance as assessed through the appraisal arrangements. A recommendation on pay must be made in writing as part of the teacher’s appraisal report and the governing body must have regard to the pay recommendation when making its decision on whether to award pay progression.
The STPCD also makes it clear that a governing body may make a decision not to award pay progression whether or not the teacher is subject to capability proceedings. This is important. Some school leaders and governing bodies can be reluctant to refuse pay progression given the history of incremental pay based on length of service, as well as a desire not to cause employee unrest. However, the purpose of the shift to performance related pay was to incentivise and reward teachers who make a significant impact to the performance of the school and the progress of its pupils.
Impact of Covid-19 on appraisal outcomes and objective setting for the 2020/21 academic year
Most schools and academies policies require that the appraisal cycle, including making a pay recommendation, should be concluded by no later than 31st October (and 31st December for headteachers), with any pay award being backdated to 1st September (despite the STPCD no longer mandating this timeframe).
2019/20
We are aware that schools and academies are currently grappling with certain aspects of appraising teacher performance for the 2019/20 appraisal cycle given the impact of Covid-19 and the full/partial closure of schools in the Spring/Summer terms.
Almost overnight schools had to drastically change the way they operate to ensure compliance with emerging government guidance and to fulfil their ongoing responsibilities to their pupils and communities. Many teachers and support staff would have been asked to work from home for perhaps the first time in their careers. Suddenly virtual learning was, in some cases, the only way to deliver teaching and learning and this would have undoubtedly created a huge burden on some schools, given the very short time frames involved in getting new and often unfamiliar learning platforms up and running and then ironing out technical glitches. Further, there was, of course, the deluge of risk assessments that needed to be carried out.
The impact of Covid-19 is especially apparent in cases where staff have perhaps been denied the opportunity to meet their set objectives for the 2019/20 appraisal cycle because of the way in which Covid-19 affected their particular role. Perhaps they were unable to work from home in periods of full or partial school closure because their role was incompatible with home working; perhaps they were redeployed in other ways to meet the needs of the school, its pupils, fellow staff and wider school community.
In response to the pandemic, the DfE issued its ‘Guidance for Full Opening: Schools’, (last updated on 22nd October 2020), which provides in relation to teachers’ pay progression:
‘Maintained schools must continue to adhere to the School Teachers’ Pay and Conditions Document which includes the requirement to ensure that all pay progression for teachers is linked to performance management. However, we would expect schools to use their discretion and take pragmatic steps, to adapt performance management and appraisal arrangements to take account of the current circumstances. Schools must ensure that teachers are not penalised during the appraisal process or in respect of any subsequent pay progression decisions as a result of the decision to restrict pupil attendance at schools, such as where this has had an impact on the ability of the teacher to meet fully their objectives.’ (our emphasis).
Various teacher unions have published guidance relating to pay progression and appraisal in light of the pandemic. The unions take different positions on matters such as objective setting and we are able to assist clients who are unsure whether a course of action is possible and the risks associated with it.
In the current circumstances, teachers may be unable to demonstrate that they have ‘sustained’ high performance in satisfaction of the STPCD requirements for pay progression because Covid-19 may have caused a gap in their evidence of meeting and/or exceeding objectives and the standards expected of the role that they not only currently perform but also, for those being considered for threshold, the standards and expectations associated with the competencies of an Upper Pay Range teacher.
When considering making a pay award generally, but also particularly an award on to, or within, the Upper Pay Range, governing bodies should consider:
- How they will address a gap in evidence to support progression;
- What other sources of evidence they will take into account to support progression where an employee has been unable to meet objectives/their performance has been affected by Covid-19;
- How they will ensure fairness and consistent decision making in relation to pay progression across different schools in a trust where decision making is delegated.
It is important that employers are cautious where an employee has been absent due to sickness and/or disability when considering whether performance expectations have been met (as well as absence related to protected characteristics generally). Employers must also consider whether their policies may be indirectly discriminatory because they inadvertently disadvantage those employees with a protected characteristic. Our dedicated Schools HR team are able to support and advise on these areas to guard against claims arising.
2020/21
As part of the appraisal cycle, governing bodies and employees will be involved in setting performance objectives for the 2020/21 academic year in the coming weeks. Given that Covid-19 looks set to be here for a while longer, governing bodies are advised to consider the ways in which the virus may continue to impact performance and take steps to ensure that objectives and measures of performance that are being set now for this academic year reflect any potential continuing impact so that employees can be set challenging objectives, suitable to their role and level of experience, but which are also adapted to take account of factors outside of the control of the employee (and the governing body) related to the virus. Governing bodies should be prepared to look at other ways in which staff have contributed, for example:
- Providing home learning within curriculum guidance, differentiated for each child’s needs as appropriate;
- Contribution to, and delivery of, Covid-19 policy and procedure including cleaning, arrangements for a staggered school day, rearrangement of furniture and classroom and shared spaces, sterilisation of equipment etc;
- Communication with parents – responding to high levels of queries/questions/concerns via written form/virtually where face to face consultation may no longer be desirable/possible;
- Delivering feedback to home learners via email or other designated software platforms;
- Contribution to, and delivery of, mental health curriculum following full reopening of schools.
As part of this process, governing bodies may wish to review their policies, particularly around objectives and objective setting and pay progression, to ensure fairness to employees but also to ensure clarity of expectations so that governing bodies are able to legitimately withhold pay progression in those cases where it is not justified, even taking into account the impact of Covid-19.
Further Information
The pandemic has made employers in all sectors look at the ways in which they work and how they can best deploy their personnel to meet the needs of their specific businesses. Schools and academy trusts need to do the same. Our Schools HR team can assist you on all your employment and HR matters. For further information or advice please contact Andrea Squires, Partner, on 020-7593-5039 or asquires@wslaw.co.uk or contact a member of our Schools HR Team on 0345 026 8690 or schoolsHR@wslaw.co.uk.