Does the STPCD Permit Employers to Increase the M6 Pay Point by 2%?

PAY SCALES FOR 2015-16

FURTHER NUT ADVICE

This further advice deals with the implementation of updated pay scale points for 2015-16, in particular to answer the following questions:

 Does the STPCD permit employers to increase the M6 pay point by 2%?  Are employers permitted to split M6 into two points or give teachers differentiated increases for 2015 whatever their previous pay point?

The advice applies to discussions with LAs, school governing bodies, academies and academy chains which use the STPCD arrangements. The general principles (but not the STPCD provisions) also apply to any discussions with academies and academy chains which do not use the STPCD for teachers appointed under academy status. For convenience, the term "employers" refers to the other party involved.

The 2015 STPCD and pay advice

As you know, the STPCD now includes only Main and Upper Pay Ranges with upper and lower limits. The STPCD no longer contains prescribed pay scale points - employers can adopt whatever pay scale points they like. The minima and maxima of the STPCD ranges have been increased by 1% for September 2015, other than the maximum of the Main Pay Range which has been increased by 2%. The STPCD does not, unfortunately, require any increase in pay scale points previously adopted by employers (other than to ensure the minimum point is at least equal to the range minimum).

The NUT has called, jointly with other teacher unions, for every employer to:

 continue to use a 6 point Main Scale and 3 point Upper Scale, and  increase Main Scale and Upper Scale points for September 2015 by 1% but increase M6 by 2% in line with the 2% increase in the maximum of the Main Pay Range.

That joint advice can be found at www.teachers.org.uk/pay

Are employers permitted to increase M6 by 2%?

Some employers are arguing that increasing M6 by 2% is not permitted by the STPCD or DfE advice.

The DfE has issued advice to schools which says the following at page 11: "The decision to increase the maxima of the main pay range by 2% from September 2015 does not mean that teachers currently on the maxima will receive a salary increase of 2%. The STRB made it clear that the uplift of 2% to the maxima was about giving schools more flexibility, and particularly those in challenging circumstances, to tackle recruitment and retention problems and to have more scope to recognise the value of high-performing experienced classroom teachers who contribute substantially to improved outcomes for their pupils. An increase of 2% should only be awarded where it is merited by performance; some teachers will receive a lower award and others none, depending on their individual school’s pay policy." In order to challenge proposals which refer to this, it is necessary to understand the status of the DFE advice to schools and the provisions of the STPCD itself.

The status of the DfE advice is clear - it says at page 4 that "This is advice from the Department for Education. It is non-statutory..." The status of the STPCD, of course, is that it is statutory and must be complied with. The status of the "statutory guidance" within the STPCD itself is set out on page 5 of the 2015 STPCD: "LAs and governing bodies are required to have regard to the statutory guidance, and in respect of guidance on procedural matters a court or tribunal may take any failure to do so into account in any proceedings. Broadly speaking, this means that any party not following this guidance would need to have good reason not to do so and would need to be able to justify any departure from it."

The DfE advice is therefore simply advice, which at some points describes requirements and at others (such as this) describes opinion. Employers are not required to comply with, or even have regard to, the DfE advice. They are required to comply with the requirements of the STPCD, and they are required not to do anything prohibited by the STPCD. They are not required to follow the views and opinions of the DfE or the STRB, unless the STPCD requires them to do so.

In this case, the STRB thought that not all teachers on M6 should get a 2% pay rise - and that only the best performers should get 2%. (That itself shows the STRB's lack of understanding - the "best performers" on M6 will be moving to U1 after a threshold assessment, unless they are deterred from applying, of course). The DfE appears to share that point of view since it has included it in its advice at pages 5 and 11. Crucially, however, it appears nowhere as a requirement in the STPCD itself or in the STPCD statutory guidance to which employers must have regard.

of the DfE advice records the position correctly: "schools are free to adopt whichever system of pay scales, within the statutory pay ranges, as they see fit – many schools have opted to retain a six point main and three point upper pay range, while others have chosen a different approach".

Any attempt to cite "Ofsted requirements" should also be disregarded. There is no legal obstacle to employers using a single point M6 for all teachers who make pay progression. Inspectors may well choose to express concern about any failure by the school to maintain a robust appraisal process or to take pay progression decisions without proper reference to that process. They cannot, however, object to the use of particular pay points.

There is, therefore, nothing in the STPCD which precludes the retention of a single point M6 which is uplifted by 2% from 2014.

Splitting M6 into two points / Differentiated increases

Other employers are proposing, for various reasons, either that M6 should be split into two values (eg "M6a & M6b") or that teachers should get differentiated cost of living increases in September 2015 whether they are on M6 or other pay points.

These proposals can generally be opposed on the basis that employers' 2014-15 pay polices have not provided the necessary basis for changing the pay structure for 2015-16 and taking decisions for September 2015 in this way. The LGA issued advice to local authorities in July 2015 on implementing the 2015 pay increase which noted that "relevant bodies have the option of differentiating the award at the maximum if their 2014 pay and appraisal policies provide a sound evidence-based process for doing so". Employers can only decide to adopt two values for M6 for September 2015, or differentiated pay scale points or individual pay rates at other parts of the pay structure, if their 2014 pay and appraisal policies explicitly provided for this. Otherwise, those policies will not have established a basis either for appraisal objectives or for pay progression decisions which involve the possibility of more than one set rate of pay increase. This position is supported by ASCL which has issued advice that "schools must apply the uplift in accordance with their own pay policy" (meaning the 2014 pay policy) and noting that "some policies have committed to ... a performance element to the award of any uplift" but that others did not.

There are of course other more substantive arguments against the reasons usually put forward for these proposals. Some employers argue that giving some teachers 2%, while others get only 1%, is "unfair". This fails to recognise that teachers are on a particular pay point for one year only. Teachers on M5 this year will move to M6 next year and benefit then from that higher increase. Ultimately, paying teachers more, even at just one point on the pay scale, should help recruitment and retention.

Some employers say that they are concerned about M6 teachers who are not applying to move to the UPS and want to provide them with some form of additional increase. You should point out that this proposal means that teachers who move from M5 to M6a will lose out, and if the employer is really concerned about teachers not applying for UPS then they should encourage every teacher to apply and make it clear that they recognise that UPS status does not mean taking on additional duties and responsibilities compared to MPS teachers.

In all cases you can remind the employer that the STRB's ideas actually make no sense in practice. The STRB decided to create a differentiated pay increase for teachers at the Main Scale maximum, intended to reward performance and assist recruitment, without mentioning (or even perhaps knowing about) the threshold assessment system giving access to the UPS. The STRB's ideas were completely confused - so importing that confusion into everyday pay decision making is really quite undesirable.

You should also remind the employer that we are talking about the cost of living increase, not pay progression on the basis of experience. Most employers, in whatever sector of employment, continue to maintain a distinction between the annual cost of living increase and progression on pay scales. Do they actually want to conflate the two in this way? Will teachers understand and accept what is happening - or will teachers be more likely to leave and less likely to join?

You can remind UPS teachers that this issue is not just relevant to MPS teachers - the abolition of pay portability means that they may face moving to the MPS when they move school, while the STRB has been asked to consider whether UPS teachers should be "allowed" to move down to the MPS. Protecting the values of MPS pay points is now important for every teacher.

Points to note when dealing with these issues locally

We would prefer LAs or schools to withdraw such proposals because they have been forced to realise that they are unacceptable and will be opposed, rather than on the basis of the legal technicalities. Without an undertaking that a proposal has been permanently withdrawn, there is always the risk that it may reappear next year.

The joint advice on pay scale points was issued jointly by NUT with ATL and NAHT and similar position has been adopted by NASUWT. Local officers of those unions should therefore support the NUT position.

In any discussions on this issue, you should ask the LA or school to commit to maintaining the M6 pay point at the same value as the maximum of the MPR every year. You should also take the opportunity to raise any other issues of concern in the pay policy eg pay portability, pay progression criteria.

National Union of Teachers October 2015