Yes, is the simple answer.
There is a common misconception that a Local Authority Maintained School must use the local authority as their HR provider. Schools are told they must do this because the local authority are ultimately the employer and have a final say in any decision to dismiss.
This is not the case.
The answer is in The School Staffing (England) Regulations 2009 Microsoft Word – uksi_20092680_en.doc
Part 2 starting on page 6 covers Community, Voluntary Controlled, Community Special and Maintained Nursery Schools. Regulation 19 deals with suspension and Regulation 20 deals with dismissal. Regulation 14 is the LA’s entitlement to offer advice. This means they can send someone to attend a disciplinary and offer advice. We have had that once in ten years and it is not an issue.
This is a link to the DfE Staffing and employment advice for schools which is also useful.
19 Suspension of staff
(1) Subject to regulation 21, the governing body or the head teacher may suspend any person employed or engaged otherwise than under a contract of employment to work at the school where, in the opinion of the governing body or (as the case may be) the head teacher, such suspension is required.
- The governing body or (as the case may be) the head teacher must immediately inform the authority and the head teacher or (as the case may be) the governing body when a person is suspended under paragraph (1).
- Only the governing body may end a suspension under paragraph (1).
- On ending such a suspension, the governing body must immediately inform the authority and the head teacher.
- In this regulation “suspend” means suspend without loss of emoluments.
20 Dismissal of staff
(1) Subject to regulation 21, where the governing body determines that any person employed or engaged by the authority to work at the school should cease to work there, it must notify the authority in writing of its determination and the reasons for it.
- If the person concerned is employed or engaged to work solely at the school (and does not resign), the authority must, before the end of the period of fourteen days beginning with the date of the notification under paragraph (1), either—
- terminate the person’s contract with the authority, giving such notice as is required under that contract; or
- terminate such contract without notice if the circumstances are such that it is entitled to do so by reason of the person’s conduct.
- If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require the person to cease to work at the school.
In relation to dismissal Regulation 20 makes clear that it is for the Governing Body to make the decision to dismiss.
‘where the governing body determines that any person employed or engaged by the authority to work at the school should cease to work there, it must:-
- notify the authority in writing of its determination;
- and the reasons for it.’
Upon receiving the notification the local authority must, within 14 days, terminate the person’s contract giving such notice as is required under that contract.
By Regulation 14 the local authority have the right to attend a meeting and offer advice relating to the selection or dismissal of any teacher:-
16 Authority’s entitlement to offer advice
(1) A representative of the authority may attend and offer advice at all proceedings relating to the selection or dismissal of any teacher.
(2) The governing body must consider any advice offered by the authority pursuant to paragraph (1).
This right is rarely used in practice and does not cause a problem.
Local authorities can refuse to indemnify a school against any legal costs or awards following a dismissal, but this is becoming less of a problem because school’s have their own insurance either through the Risk Protection Arrangement via the DfE or other insurer.
