England and Wales
For information in Northern Ireland
NAHT believes that the term ‘executive head’ is a very loosely-used term used in a number of different contexts. First, it is important for members to note that the posts of “executive head”, “associate head”, “head of teaching and learning”, etc are not defined in legislation and are therefore unknown to the current statutory framework.
NAHT is becoming increasingly concerned that some of our members, particularly deputy and assistant heads working within federations, are taking on duties and accountability that are outside their statutory conditions of employment and are not recognised in their levels of pay. In addition, NAHT believes that some “executive heads” are assuming duties that are effectively placing them outside the current legislation, which may have consequences in relation to their pay and conditions.
This advice seeks to set out the issues for our members. However, to understand fully the complexities of the problem, it is important for members to appreciate the current statutory framework.
Legislation
Ss 35(3) (community, voluntary controlled, community special, maintained nursery schools) and 36(3) (foundation, foundation special, voluntary aided) of the Education Act 2002 requires that schools must have a person appointed as head teacher, or a person appointed to carry out the functions of head pending the appointment of a head or in the absence of the head (ie an acting head).
The School Teachers’ Pay and Conditions Document 2012 (“the Document”) defines a ‘head teacher’ in England as a person appointed to the teaching staff of a school as head and includes a person appointed as acting head to carry out the functions of a head (ss 35(3) and 36(3) of the Education Act 2002). A similar definition, referring to the School Standards and Framework Act 1998, exists for head teachers in Wales. However, in Wales, a head teacher must be a qualified teacher; in England, there is no such requirement.
The Document, which applies to both England and Wales, requires that a head teacher, or acting head teacher, is paid on the school’s Individual School Range and assumes the ‘professional responsibilities’ of a head (Part 9, Section 2 of the Document).
In view of the wording of the Education Act 2002, it is permissible to have a job share (co-headship) arrangement; however, it is not permissible to have two heads employed at the same time (dual headship). It is, however, perfectly proper for there to be an overlap in a job share arrangement to aid communication. One head will be the accountable head employed on that day/half day; the job share partner will be paid their head’s rate of pay to attend school to assist with communication within the co-headship.
School Teacher Review Body (“STRB”)
In its 18th Report, Part 1 (www.ome.uk.com), the STRB, which is the independent body which makes recommendations to the Secretary of State on the pay and conditions of teachers, recognised that there were heads who were described as ‘executive heads’ and noted that it was a term that was used in different contexts. It was sometimes used to describe a head who had overall accountability for more than one school but who was the only head teacher. The STRB viewed this arrangement as unproblematic; and there are now provisions within the Document to cover these arrangements. [In the case of a head who takes on accountability for another school(s) on a temporary basis, the ISR is based on the ‘home’ school only. Accountability for the additional school(s) is rewarded through a discretionary payment (see paragraphs 12.4 and 12.5(d) of s.2; and paragraphs 43 to 50 of s.3). In the circumstances where a head is accountable for another school(s) on a permanent basis, the ISR is based upon pupil numbers across the federation, calculated in accordance with paragraph 12.2.4 of s.2, STPCD 2012. Please also note paragraphs 34 to 36 of s.3. [Further information on head teacher pay can be found on the NAHT web site.]
However, STRB noted that the term ‘executive head’ was also used to describe a post that sits above two or more head teachers, where the individual head teachers retain accountability for their respective schools. The STRB felt that the second scenario caused them concern since these posts were not covered by legislation and would ultimately require change to primary legislation in order to accommodate them. In STRB’s view, ‘executive heads’ of this kind were currently employed on terms and conditions falling outside of the Document.
The STRB recommended at the time that the DfE undertake work, as a matter of urgency, to clarify the definition and status of ‘executive head’ and to make any necessary adjustments to ensure a firm legal basis for the role as soon as possible. This work has still not been undertaken; NAHT continues to press for clarification but recognises the issues that may arise for its members in such a scenario.
NAHT view
First, legislation places statutory duties only on local authorities, governing bodies and head teachers; no powers are conferred on ‘executive heads’. In relation to heads, there are a number of examples of such legal responsibilities which only a ‘head teacher’ can perform. It is only a head that has the power:
· as an employee of the school, to suspend a member of staff (governors also have this power);
· to exclude a pupil;
· to appoint performance management/appraisal reviewers;
· to undertake threshold assessment;
· to report annually to the governing body on the progress made towards achieving the aims and objectives set for the school and progress towards meeting specific targets set.
· to provide the governing body with an annual written report about the operation of the performance management/appraisal policy, the effectiveness of the school’s PM/appraisal procedures and teachers’ training and development needs.
Although a head teacher can reasonably delegate any of his/her professional responsibilities to a deputy/assistant head, a head has ultimate accountability for a head’s professional duties. A head is responsible for the internal organisation, management and control of the school and the implementation of the strategic framework established by the governing body.
We agree with the STRB that it is unproblematic when a head becomes accountable for another school(s) on a temporary or permanent basis, although there are issues in relation to the pay where a head takes on permanent accountability (see NAHT guidance document on head teacher pay, available from our web site). They are still a head/acting head with pay and conditions set out in legislation and are able to undertake the specific responsibilities that only a head can perform.
As the STRB noted, the issues surround those heads who we believe do not ‘sit’ under the legislation. NAHT has members who are firmly outside the statutory definition of a head teacher. Examples include:
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Three schools, with their own individual DfE school numbers and each with their own ‘head’, who is the named person for Ofsted purposes. These ‘heads’ perform the specific duties on heads, as set out above (even though, in many cases, they are paid as deputy/assistant heads and consequently work to the professional responsibilties of deputy/assistant heads). In addition, the powers governing admissions rests with individual schools, not a federation.
The “executive head” sits above the three-prong federation and line manages the three individual heads, including undertaking their performance management/appraisal. The executive head may also spread good practice, have a strategic role and may be involved in bringing funds into the school through other activities. It is clear, however, that in this model, and as a consequence of current legislation, the executive head has no power to perform the duties explicitly given to a ‘head teacher’. Indeed, it could well be argued that this ‘executive head’ is in fact a ‘professional governor’, who undertakes the PM/appraisal of the three heads and general fund-raising.
Alternatively, it could be argued that the ‘executive head’ is the (statutory) head teacher accountable for all three schools within the federation and he/she should be the named person for Ofsted purposes of all three schools. The argument then, of course, is that the executive head has inappropriately delegated the powers given to a head under current legislation (see above).
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A ‘head of school’ performs the day-to-day role of head, and includes all the powers/duties specifically placed on a head teacher. In addition, an executive head is employed by the school, who has inappropriately been given overall accountability, but spends the majority of time out of school running training events and spreading good practice. The school budget benefits from the money earned through the delivery of training courses, etc. Again, it is clear that the ‘head of school’ is the head teacher as defined by the Education Act 2002 and the Document. The ‘executive head’ could be defined as a business manager/fund raiser, but is clearly not employed under the statutory framework as head teacher.
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There are numerous examples where an ‘executive head’ is imposed upon a school(s) where there is already a head teacher in post. Even where this happens with the agreement of the incumbent(s), almost invariably some of the head’s statutory duties and responsibilities will be usurped. There is consequently a lack of clarity as to who is ‘head’ as defined by legislation.
Where an ‘executive head’ is effectively a ‘professional governor’, ‘business manager/fund-raiser’ or consultant/adviser, it is unlikely that they will be eligible for membership of the Teachers’ Pension Scheme (see TPS summer newsletter 2011): http://www.teacherspensions.co.uk/employers/training-and-resources/~/media/Files/Documents/Employers/TP%20News/TP_News_Summer_11.ashx . However, it is likely that they would be eligible for membership of the Local Government Pension Scheme.
Conclusion
It is clear that every school must have a person employed as head or acting head in the school’s staffing structure. There cannot be two head teachers, other than in a job share arrangement. The person appointed as head/acting head must assume the professional responsibilities of head and must be paid on the school’s Individual School Range. We believe that there are ‘tests’ which define who, in practice, is ‘head teacher’ (or acting head teacher) under the legislation: These include, who, properly:
· is the named person for Ofsted purposes?
· appoints PM/appraisal reviewers and reports to the governing body on the school’s PM/appraisal policy, its effectiveness and the training and development needs of teachers?
· has the power to exclude?
· as an employee, has the power to suspend a member of staff?
· undertakes threshold assessment?
· reports annually to governors on the progress made towards achieving the aims and objectives set for the school and progress towards meeting specific targets set?
· is responsible for the internal organisation, management and control of the school and the implementation of the strategic framework established by the governing body?
NAHT is particularly concerned that some deputy and assistant head members, principally those employed in federations, are fulfilling the roles and responsibilities of “head teacher”, without the recognition in their pay levels.
It is clear that a school can employ any other person it wishes to do so. In the examples given above, the ‘executive head’ in the scenarios would be employed on individual contracts of employment and would obviously be able to negotiate on their salary and terms and conditions of employment.
Members who have concerns about their pay or conditions of employment should contact the Specialist Advice team on 0300 30 30 333 (email: specialistadvice@naht.org.uk).
