Executive capability exits in schools & trusts guide

A CEO was dismissed for capability. The employer skipped the basics: no formal investigation, no written concerns, no meeting, no appeal. The tribunal found the dismissal unfair. On compensation, the Employment Appeal Tribunal said the judge hadn’t properly explained when a fair dismissal would likely have happened if the process had been done right so that bit goes back to be re-decided.

What this means for education HR

• Boards set strategy; HR runs fair process. Don’t let a strategy discussion morph into a dismissal without giving the post-holder their rights.

• Seniority ≠ shortcut. Warnings, meetings, evidence disclosure and appeal will usually still be expected—even for executives.

• Document your thinking. If you ever deviate (e.g., because further steps would be useless), write down why.

A simple pathway for executive capability

Stage 1 — Concerns crystallise (Week 0) Capture the evidence: KPIs, budget variances, Ofsted/ESFA risks, board papers. Confirm the reason is capability (not conduct/SOSR).

Stage 2 — Invite (Week 1) Write to the post-holder: the shortfalls, the standards, the evidence included, possible outcomes (up to dismissal), and the right to be accompanied.

Stage 3 — Meeting (Week 2) Disclose documents in advance. Hear their explanation. Explore support and realistic objectives. Keep minutes.

Stage 4 — Support & review (Weeks 4–8) Implement the plan: coaching, clearer KPIs, resources. Review against dates you set.

Stage 5 — Decision & appeal (Week 8+) Decide with reasons. Confirm in writing. Offer an independent appeal (ideally a trustee uninvolved so far).

Only shorten this in genuinely exceptional cases—and record why further steps would be pointless.

Pitfalls to avoid

• “Board already decided.” Pre-determination kills fairness.

• Policy amnesia. If your handbook mirrors ACAS, follow it—or explain any deviation.

• Label drift. Don’t rebadge capability as “loss of trust” to speed things up. Tribunals spot that.

If exit is still inevitable: get your Polkey story straight

If you argue a fair dismissal would have happened anyway (and by a certain date), show your workings:

1. When the concerns crystallised (the exact date).

2. What a fair process would have looked like (the stages and realistic timings).

3. Why dismissal would still be the outcome, by when, with the documents to support it (KPI packs, minutes, review notes).

Fast FAQ for HR

• Does the ACAS Code really apply to executives? Yes. It’s guidance, but tribunals expect you to align with it—and can uplift awards if you don’t.

• Can we skip warnings for a CEO? Only in rare, well-justified scenarios. If you do, record why an improvement plan would be futile.

• Can we call it SOSR to move faster? Not if the real issue is performance. Mis-labelling increases risk.

Need backup?

DW Consulting Experts can:

• run or stress-test executive capability processes;

• act as independent investigator or appeal chair;

• build the document pack that stands up in tribunal.