Education (No. 2) Act 1986

38 Appointment of certain other staff. E+W

(1) The articles of government for every county, controlled, special agreement and maintained special school shall provide for it to be the duty of the local education authority, where there is a vacancy in any post which is part of the complement of the school—

(a) to decide whether, in the case of a post which is not a new one, it should be retained;

(b) to advertise the vacancy, and fill it in accordance with the procedure laid down by virtue of subsection (3) below, unless they have the intention mentioned in paragraph (c) below; and

(c) to fill the vacancy in accordance with the procedure laid down by virtue of subsection (4) below, if they intend to appoint a person who, at the time when they form that intention, is an employee of theirs or has been appointed to take up employment with them at a future date.

(2) This section does not apply in relation to the appointment of a head teacher or deputy head teacher or to any temporary appointment made pending—

(a) the return to work of the holder of the post in question; or

(b) the taking of any steps required by the articles of government in relation to the vacancy in question.

(3) The articles of government for every such school shall provide—

(a) for it to be the duty of the authority, where they decide to advertise the vacancy, to do so in a manner likely in their opinion to bring it to the notice of persons (including employees of theirs) who are qualified to fill the post;

(b) for it to be the duty of the governing body, where the vacancy is advertised—

(i) to interview such applicants for the post as they think fit; and

(ii) where they consider that it is appropriate to do so, to recommend to the authority for appointment to the post one of the applicants interviewed by them;

(c) for it to be the duty of the governing body, where they are unable to agree on a person to recommend to the authority—

(i) to repeat the steps which they are required to take by virtue of paragraph (b) above, if they consider that to do so might lead to their reaching agreement;

(ii) where they have repeated those steps and remain unable to agree, or have decided that it is not appropriate to repeat them, to ask the authority to re-advertise the vacancy; and

(iii) where the vacancy is re-advertised, to repeat those steps;

(d) for it to be the duty of the governing body, where the authority decline to appoint a person recommended by them—

(i) where there are applicants for the post whom they have not interviewed, to interview such of those applicants (if any) as they think fit;

(ii) to recommend another of the applicants interviewed by them, if they think fit;

(iii) to ask the authority to re-advertise the vacancy, if they consider that it should be re-advertised; and

(iv) where the vacancy is re-advertised, to repeat the steps which they are required to take by virtue of paragraph (b) above;

(e) for it to be the duty of the authority, where they are asked by the governing body to re-advertise the vacancy, to do so unless they decide—

(i) that the post is to be removed from the complement of the school; or

(ii) to appoint a person who, at the time when that decision is made, is an employee of theirs or has been appointed to take up employment with them at a future date; and

(f) for—

(i) the head teacher, where he would not otherwise be entitled to be present; and

(ii) such person (if any) as the authority appoint to represent them,

to be entitled to be present, for the purpose of giving advice, whenever governors meet to discuss the appointment or an applicant is interviewed.

(4) The articles of government for every such school shall provide—

(a) in the event of the vacancy not being advertised, for the governing body to be entitled to determine a specification for the post in consultation with the head teacher;

(b) where the governing body have determined such a specification, for it to be their duty to send a copy of it to the authority;

(c) for it to be the duty of the authority—

(i) to have regard to the specification, and consult the governing body and the head teacher, when considering whom to appoint to the post; F1 . . .

F1 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) No local education authority shall appoint a person to a post which they have advertised in accordance with requirements imposed by virtue of subsection (3) above unless—

(a) his appointment has been recommended in accordance with those requirements; or

(b) the authority decide to appoint a person who, at the time when that decision is made, is an employee of theirs or has been appointed to take up employment with them at a future date.

(6) The articles of government for every such school shall provide—

(a) for the governing body to have power to delegate any of the functions which are theirs by virtue of this section, in relation to the filling of a particular vacancy or a vacancy of a kind specified by them, to—

(i) one or more governors;

(ii) the head teacher; or

(iii) one or more governors and the head teacher acting together; and

(b) for the provision made in the articles by virtue of subsection (3)(e) or F2 . . . to apply in such a case with the substitution of references to the person or persons to whom the functions are delegated for references to the governing body.

Textual Amendments

F1 S. 38(4)(c)(ii) and the word preceeding it repealed (1.4.1994) by 1993 c. 35, s. 307(1)(3), Sch. 19 para. 100(a), Sch. 21 Pt. II; S.I. 1994/507, art. 4, Sch. 2Appendix

F2 Words in s. 38(6)(b) repealed (1.4.1994) by 1993 c. 35, s. 307(1)(3), Sch. 19 para. 100(b), Sch. 21 Pt.II; S.I. 1994/507, art. 4, Sch. 2Appendix

Modifications etc. (not altering text)

C1 Ss. 34–40 modified by S.I. 1989/1135, art. 3(1)(d), Sch. 4