Sub-par teachers and Ministry of Education officials cannot be fired for their low performance unless there is a change in the law, said a civil lawyer.

But the Ministry of Education last night argued the head of the department can fire a teacher, deputy principal or teachers of special responsibility for gross misconduct which could include low performance.

According to the Public Service Commission Regulations 2001, once a civil servant has passed the mandatory six months' probation, he or she can't be fired for being ineffective.

In its recently released five-year strategic plan, the Ministry of Education promises to drastically improve the quality of teaching and dismiss low-performing teachers who don't improve.

"Creating a culture of excellence means that we will not accept under-performance and we will send a clear message that low-performing personnel who do not improve after receiving intensive support will be dismissed. Equally we will recognise and offer incentives and rewards to high performing schools and individuals."

However lawyer Paul Harshaw argued the regulations do protect teachers from being sacked.

"Teachers are civil servants just like everybody at Immigration, TCD and everywhere else," he said. "In order for the Ministry to sack teachers, they must comply with the provisions of the Public Service Commission Regulations 2001 they govern the discipline including the dismissal of teachers."

The lawyer said he was certain that most would agree with Government's commitment to remove teachers who were not properly doing their jobs a standard move in the private sector.

"The problem is that Government operates different from private industries. In private industries, no problem. I think that people who are deciding this policy aren't taking into account the difference with what one can do in the private industry and what one can and can not do in Government. It's a common problem."

Asked what can be done if a teacher is deemed weak, he said: "If a teacher is not doing the minimum expectations of the Ministry, the Ministry is going to have to give assistance to bring the teacher up to par. But dismissing teachers is a very different issue even when they are under-performing.

"I don't recall anything in [the law] in relation to under-performing. When a person has cleared their probation, it's very difficult to get rid of a civil servant. It's very difficult to get rid of a teacher."

Mr. Harshaw continued: "I don't think anybody in principle disagrees with what the Ministry is trying to do but the problem is they are held by the regulations.

"I don't think it's impossible, I think it's going to be very difficult for Government to dismiss under-performing teachers unless there is going to be a change in the law that doesn't only affect teachers but will affect all civil servants equally."

Meanwhile a Ministry official said: "There is another piece of legislation called the Public Service (Delegations of Power) Regulations 2001. It delegates the responsibilities for teachers, deputy principals and teachers with special responsibilities. It delegates the authority that would normally be held by the Governor to the Department of Education.

"The head of the department has the authority to hire and fire teachers, deputy principals and teachers with special responsibilities. Low performance is not a specific item of misconduct but there are levels of misconduct called gross misconduct.

"Misconduct could be things like not showing up for work on time and a series of things that constitute misconduct. Incompetence is one of the things that would make up misconduct. If there are a series of events that taken together can be constituted for gross misconduct, then it is an offence for which a person can be dismissed."