Move to block performance-related pay in schools 'illegal' The Telegraph understands that heads who follow union instructions would be in breach of the law and schools would be marked down in official Ofsted inspections, potentially branding them as "failures." Theoretically, heads could also face prosecution and a criminal record, although other aspects of education policy, such as caps on infant class sizes, are also enshrined in law and school leaders have not previously been hauled before the courts for flouting them. From this September, heads will be given complete freedom to pay the best teachers more money within a minimum and maximum threshold. It dismantles the current system in which teachers are effectively awarded pay rises based on length of service. Last month, the Department for Education published guidance suggesting that heads reward teachers who improve pupils" exam results, keep order in the classroom and take part in extra-curricular activities. But the move has been savaged by union leaders who claim the system will create tensions in the staffroom, damage teachers" morale and lead to heads rewarding "compliance" rather than good performance. The NUT and NASUWT are already taking strike action over the changes, with the first co-ordinated walk-out taking place in the north-west next month before spreading across the country in the autumn. On Wednesday, it emerged that the unions had written to schools urging them to put teachers onto higher pay bands if they have "two years of successful appraisals." It also suggested that teachers should be judged as "successful" unless significant concerns had been made about them in writing that were subsequently not addressed by the staff member. . But the DfE insisted this guidance represented a "substantial and serious weakening of the process." It insisted that schools can only award pay rises if staff are judged to be "highly competent" against all aspects of its new teaching standards, adding that they "must have made a sustained and substantial contribution to the school." In a letter to schools, Mr Gove said he considered parts of the union guidance "to be unlawful," although DfE officials were unable to reveal how the measures will be enforced or the punishment for heads who flout the rules. "If every aspect of these were adopted by schools, that would mean putting in place a pay policy that failed to meet statutory requirements," he said. But the NUT criticised the intervention, saying it represented an attempt to "bully" schools. Christine Blower, general secretary, said: "Schools did not want the break-up of the national pay framework and the additional work which school-based pay negotiation would bring. Clearly Michael Gove, having picked this up, is now seeking to bully schools by threatening that they will be acting illegally when they adopt our framework. His allegations are without foundation - as he knows - but his threats reveal the lengths to which he will go to impose his own ideas under the guise of freedom.