1. Misuse of Process

In our research, we encountered a case where the response of the Board of Governors to a written grievance complaint was simply to ignore it. To be precise, the Board in question gave a short response stating that the grievance was “outside the parameters of the applicable policy & procedure” … and then ignored it and took no action.

The education worker making the complaint was in an impossible position. There was no possibility of bringing an internal appeal because there was no investigatory report to appeal against. Similarly, there was no possibility of an independent appeal for the same reason and because the LRA (Labour Relations Agency) will not entertain an appeal until remedies under the policy & procedure have been exhausted. [Incidentally, this is an incorrect stance on the part of the LRA – which is discussed below.] Further, there is nothing in the applicable policy & procedure to give any guidance in this situation.

We do not believe that any Board of Governors (or any Employing Authority) has the necessary competence or authority to make decisions of this type. We believe that all formal grievances (including ones that are improperly founded – if that is the case) should result in an investigatory report which then affords access to the appeal process. If a Board of Governors genuinely feel a grievance is outside the relevant parameters then it should issue an investigatory report stating that conclusion. This would allow an appeal to be made, internal and/or external, and the matter to be discussed and duly resolved. By acting as it did in the instance cited above, the Board of Governors arbitrarily, and potentially disingenuously, removed the right of appeal and improperly undermined the grievance submitted.

As the current policy stands, an unscrupulous Board of Directors could subvert any grievance complaint by the simple expedient of declaring it non-compliant and refusing to take action. This leaves the complainant with no recourse and debases the entire grievance policy & procedure. The possibilities for abuse of process are obvious.

We believe the policy & procedure (TNC 2014/6) should be amended to make it clear that every grievance submitted must result in an investigatory report.

2. Issues re Disclosure of Evidence / Opportunity to Respond

The position on disclosure of evidence against an education worker is far from as clear as one would expect. Our research revealed a case where findings were made without disclosure of a substantial quantity of the relevant evidence, thereby depriving the individual of any opportunity to make a complete and considered response. Two other aspects of this matter raise serious concerns: (i) the limited disclosure made was done on short notice (less than 48 hours before the required hearing), and (ii) subsequently, the limited evidence items that had been disclosed were amended (in the week immediately before issue of the findings) and the revised evidence was not disclosed. The final insult in matter in question was that the substantive part of the hearing was then limited to no more than forty (40) minutes: hardly sufficient for one’s case to be stated even if all evidence had been properly disclosed.

The detriment, prejudice and injustice inherent in this conduct is as obvious as it is abhorrent.

TNC 2016/2 includes the principles of natural justice in its text but limits the requirement for advance notice of all evidence to ‘disciplinary’ proceedings. This opens the door to an interpretation (hair-splitting and dubious, in our view) that the same does not apply to any policy, procedure or investigation that is not expressly disciplinary in nature. In turn, TNC 2009/11 makes a feeble and ultimately deficient attempt to address this point when it states that the evidence will be “made known” in the course of the investigation. This is inadequate.

We believe that all relevant TNC policies & procedures should contain clear and express statements that all allegations, statements and evidence, without exception must be disclosed in advance and in timely fashion and that education workers must be given enough time (both before and during any hearing) to make a considered response. Anything less is unfair, unreasonable and unjust.

3. Issues relating to Rights of Appeal

There are two separate issues relating to this subject (and potentially a third which is addressed in the next section)

3a. Application to Governors

TNC 2009/11 provides a three-stage procedure: an initial investigation leading to a report / findings, an internal appeal stage and, finally, an independent external appeal. This, we suggest, is fair and reasonable in principle (if not always so in its implementation).

When one of the Governors is the respondent to a complaint, however, the procedure alters materially. In this case, there is provision for the initial investigation and the internal appeal, but any independent external appeal is prohibited. The consequence of this amendment in respect of any complaint against a Governor is twofold. Firstly, the complaint will be initially reviewed by an “investigatory panel” comprised of other members of the same Board of Governors. Secondly, if the complainant decides to appeal the matter goes before the “internal appeal sub-committee” which, in compliance with the policy & procedure, comprises still more members of the same Board of Directors. Thus, both the initial investigation and any appeal will be conducted by the respondent’s colleagues and fellow Governors.

We take it as self-evident that this situation is improper and potentially prejudicial. Governors will be pre-disposed towards their colleague and inclined to view matters through the lens of partiality if not actual bias (and may even be concerned at how any negative result may reflect upon them). The potential for friendship, collective interest and general solidarity to colour findings is obvious. The potential for influence to be brought to bear, and for inappropriate considerations of fellowship and self-interest to be a factor (when it might, in any other situation, be seen as a conflict of interest) cannot be discounted.

We see no rational or justifiable reason for the exclusion of independent external appeal … and many good reasons why it should apply. We see nothing to justify giving Governors “special” status in such matters. We believe TNC 2009/11 (and any other relevant policy) should be amended accordingly.

3b. Unequal Rights of Appeal

TNC 2009/11, by way of example, gives the complainant express rights of appeal, both internal and external. In stark contrast, the respondent has no right of appeal and is obliged to wait until the disciplinary stage before any right exists. There is neither explanation nor justification for this inexplicable position.

This means the complainant effectively has three “bites at the cherry” (should they be needed) but the respondent has no equivalent right to seek redress. The respondent’s right of appeal at the disciplinary stage is not a satisfactory substitute because, by that stage, the tone and nature of the proceedings (which assumes the findings are correct and concentrates on the sanctions to be applied) are entirely different. In this way, the respondent’s ability to challenge the content of the findings is seriously compromised. It is obvious that this amounts to unequal treatment of the parties resulting in unfair prejudice.

We believe rights of appeal should be equal between complainant and respondent.

4. Incorrect Interpretation of Appeal Rights

Our research has revealed certain fundamental errors in interpretation being applied by Boards of Governors, Employing Authorities and, most worryingly, the LRA. All of these bodies have fallen into the mistake of relying upon notions of custom and practice and past behaviours without proper regard to the explicit and unambiguous wording of the applicable policies & procedures.

Fort example, it came to our attention that both an Employing Authority and the LRA prevented an independent appeal from going ahead on the grounds, they claimed, that there was no “exhaustion of remedies.” When challenged on that point, the LRA switched tack and claimed the external appeal could not proceed without an “Outcome Report.” Both arguments were expressly stated to based on custom & practice. In reality, both arguments have no foundation or support in the relevant policy & procedure (TNC 2014/6) and are wholly wrong.

The phrases “exhaustion of remedies” and “Outcome Report” do not appear anywhere in the relevant Policy & Procedure (or any other TNC document that we have reviewed to date). There is a reference to an “outcome” but it is neither a defined nor a capitalised term in the document. We take it as self-evident that there is a clear difference between an ‘Outcome Report’ (a written document required to be produced as part of the defined procedure) and an ‘outcome’ (which is simply whatever results from the action in question).

TNC 2014/6 actually states that where the employment worker has followed the procedure and is dissatisfied with the outcome (sic) then that person has a right of external appeal. It bears emphasising that the policy & procedure expressly states this to be a right.

In the case already cited in Issue #1 above, following three months of delay over the incorrect claim of the grievance lacking standing, the Board of Governors and Employing Authority then delayed for an additional period of over five months without appointing anyone to conduct the investigation and with no prospect of anything changing anytime soon. Consequently, a request for external appeal was submitted to the LRA on the grounds, per TNC 2014/6, that the employment worker had followed the procedure, was dissatisfied with the result and so was exercising the right of external appeal. This was initially accepted by the LRA and arrangements were in hand for the external appeal until the Employing Authority intervened. The LRA decided not to proceed with the appeal at that time on the ground (mentioned above) of exhaustion of remedies. When challenged, the LRA abandoned this justification and instead claimed they could not proceed without an Outcome Report. When this too was challenged, the LRA made no attempt to defend its position but simply stated if would not be going ahead because it did not wish to “rock the boat”- regardless of the fact that the boat in question is based on a confused, faulty and invalid habits that fly in the face of the substance of the policy & procedure.

This conduct by all relevant parties resulted in the denial of an express right. This is unacceptable and fundamentally unjust. This was not the underlying intention when the policy & procedure was written.

Moreover, the potential for manipulation and abuse is clear. If the position of custom & practice advanced by the LRA is correct, anyone on the management side, whether unscrupulous, incompetent (or both!) or otherwise, has the ability to frustrate any genuine grievance for an indefinite period. All that needs to be done is to avoid acting as required and delay either or both of any report and/or internal appeal. While there are stated time limits, these are entirely toothless and routinely ignored (which is discussed below) and there is no person or body with either the authority or appetite to hold anyone to account: management can delay, delay and delay still more with absolute impunity.

In the case cited above, as at July 2025 this is rapidly approaching the third anniversary of submission of the grievance and the second anniversary of the request for an external appeal … with still no appeal hearing date assigned.

All of this is very much to the detriment, disadvantage and prejudice of the employment worker. We assert that all relevant TNC policies & procedures need to be revised and amended to make it explicit beyond doubt as what applies in any given situation … and the consequences of failing to do it.

5. Issues re Representation Rights

A similar issue of a generally accepted interpretation and practice that has no foundation in the policies & procedures occurs in respect of Employing Authorities acting as representatives in external appeals (i.e. – where a qualified employee of the Employing Authority represents management / governors and actively puts the case and arguments to the appeal panel). It seems this has been allowed to occur for some considerable time now and the LRA have stated expressly by e-mail (albeit one that appeared to confuse ‘representation’ and ‘accompaniment’) that this is “common practice.”

It may be de facto common practice and it may have occurred many times over numerous years … but it is nevertheless incorrect and lacking legitimacy. The fact that the same invalid practice, in breach of TNC Policies & Procedures, has been repeated over and again, whether through ignorance, apathy or otherwise, does not mean that anyone is obliged to accept it as established procedure. Repetition of a wrong does not make it right.

In truth, TNC Policy & Procedure makes no provision whatsoever for representation of management before the independent appeals panel. It addresses representation of the education worker but says nothing about management being represented by anyone: it follows that such representation is not permitted.

The TNC policy does expressly allow the Employing Authority to be present at the earlier internal stage, but only on invitation and only in an advisory role (i.e. – not as representative). That the Policy addresses attendance at the internal appeal stage but says nothing about the external appeal stage supports the view that excluding the Employing Authority from external appeals was a deliberate choice.

It might be argued that this was mere oversight: that having allowed the Employing Authority to be present at the internal appeal stage effectively means that it should be allowed on external appeal. Even if this is correct, the basis of such attendance would be the same as for the internal appeal, namely an advisory role only. The notion that moving to an independent external appeal would somehow change the basis of attendance and permit the Employing Authority to become and active representative is nit supported by any TNC Policy and is fundamentally laughable.

The provisions for representation of the employment worker suffer from their own issues. Permitting representation by a teacher colleague is a worthless gesture that offers no benefit unless, by some bizarre serendipity, the worker has a colleague with experience of, and some ability for, appeal hearings and the like. There is provision for representation by a union official but even then successive TNC policies seek to fetter and limit this by a series of different and somewhat erratic definitions of what amounts to a union official. In any case, when dealing with matters that potentially have significant career and reputational implications, the only truly fair approach is to give the education worker freedom to appoint any chosen representative.

The entire subject of representation needs to be reconsidered and set out clearly and unambiguously throughout all TNC policies & procedures. The underlying principle should be one of fairness, equal treatment and following the principle of “equality of arms.”

6. Issue relating to Time Limits

TNC policies and procedures are littered with time limits: 5 working days to arrange a hearing, 7 to issue a written outcome report, 10 to convene an internal appeal hearing and 15 to hold an external appeal hearing, for example. Typically, policies contain lofty-sounding but ultimately impotent statements that all steps and action must be taken without undue delay.

In practice, our research shows that these time limits are routinely and cynically ignored, often without apology, explanation or recognition. The problem lies in the fact that none of the time limits have any consequences and so there is no motivation for a recalcitrant and/or indifferent party to pay them heed.

We propose that all time limits should be lengthened to make them more realistic and that the consequence off failing to observe the same (absent good and valid explanation) should be clearly stated and commensurately detrimental to the offending party. As matters stand, management can delay, drag matters out and generally abuse the process to its own ends indefinitely without any penalty whatsoever. This is unjust.

7. Issues with the Duties of Investigatory Panels

Our research strongly suggests that members of Boards of Governors comprising the Investigatory panel under TNC Policies often lack a satisfactory understanding of their duties in that role.

For example, we have found instances where an expressly stated duty to summarise the issues and the precise terms of complaint has been overlooked. Similarly, the expressly stated duty to detail the allegations against a respondent has been interpreted as merely passing along a copy of the written complaint (regardless of whether its content is relevant and/or suitable) while simultaneously (as discussed above) failing to disclose material evidence.

More often than not, and to quote one TNC Policy, the “Board of Governors has the overall responsibility for overseeing the implementation and operation …” of the relevant Policy. Yet it is appears that, all too often, the Board of Governors has an imperfect knowledge and understanding both of the content and requirements of TNC Policies and of their consequent duties in relation to evidence, disclosure, conduct, applicable standards, time limits and more.

We propose that all parties would benefit from revised and amended policies & procedures that clarify precisely what is required of each party, whether Governor, complainant, respondent or Employing Authority, at each stage.

8. Specific Issue with TNC 2009/11

TNC 2009/11 addresses bullying and harassment.

The issue is that a detailed policy & procedure that requires nineteen pages (including Annexes) to deal with this important subject … never actually defines “bullying” or “harassment.” This is bizarre in the worst way: education workers can be accused of, and have findings against them for, bullying and harassment without any notice or knowledge of the standard and considerations that apply or the basis on which conduct is judged to be unacceptable. This should be stated, clearly and with as much objectivity as can reasonably be achieved, so as to give everyone a degree of certainty and a way to assess whether conduct crosses the line or not.

As noted, however, TNC 2009/11 does not provide any definition and thus fails to bring any level of objectivity to a sensitive subject that has potential to damage careers in the longer term.

Instead, TNC 2009/11 attempts to address an extremely serious subject by giving, in an annex, a non-exhaustive list of behaviours that may amount to bullying and/or harassment. To be fair, the sample behaviours given for harassment are unquestionably examples of improper conduct … but also of such a basic and obvious nature that they need hardly be written down. When it comes to bullying, however, many of the examples given are vague, unclear and unhelpful.

The problem this has created is that the assessment of conduct alleged to amount to bullying is done on an almost entirely subjective basis. Worse still, it puts both the authority and the burden of subjectively assessment of behaviour in the hands of individuals who, for the most part, lack and knowledge, skills or experience in applying essentially legal disciplines and principles not only to such assessment but also to the proper establishment of relevant facts and the proper treatment, categorisation and reliability (including credibility) of relevant evidence. Thus, decisions affecting reputations and careers are permitted to be made on a wholly subjective basis by persons lacking any, let alone any adequate, knowledge, background and/or training.

To illustrate the injustice and absurdity that can arise in this situation, our research found an instance where Governors on an investigatory panel interpreted the TNC 2009/11 mention of a ‘non-exhaustive’ list of behaviours to mean they could add new behaviours of their own devising. On this basis, a finding of bullying was made against an education worker for a circumstance where the worker in question took no action whatsoever, said nothing to anyone and, in fact, was completely unaware that the episode in question was taking place. In short, the worker knew nothing about the episode, did nothing and said nothing … and still was found to be in the wrong.

Here, the investigatory panel, with no legal knowledge or experience, indulged a frolic of their own and invented an entirely new area of jurisprudence based on the claim that the worker was responsible, over a period of weeks and months, for creating the circumstances in which the other party found it necessary to act in a particular way. Not only is this a ridiculous position, it is manifestly unjust and prejudicial … and the opportunities for manipulation and abuse are legion.

Much of this nonsense can be averted by the simple, and sensible, expedient of defining bullying and harassment and introducing the highest reasonably attainable degree of objectivity.