Nigel Baker of Lexicon Employment Law Training highlights some recent developments in the education field.
One of the great challenges for teaching staff is to remain composed and restrained when faced with unruly, disobedient or provocative pupils. Winding a teacher up to see them explode remains a big objective for some pupils and there are an infinite number of ways to achieve this. However, it is part of the professionalism of teaching and support staff to maintain order and standards of pupils while retaining one’s self-respect and temper. How a teacher reacts to provocative antics by pupils is a signal to the rest of the class about future conduct and how such behaviour will be responded to by an individual teacher in certain circumstances. A difficulty can arise when a teacher tries to make an example of a particular pupil to prove a point to the rest of their peers because such action by the teacher will invariably be more extreme than a normal response. A balance must be struck by the teacher and a suitable response may be firm yet sensitive. While experience helps a lot in gauging the correct response, a key factor for any teacher is the ability to maintain respect from the class as a whole. Pupils will acknowledge and expect a teacher to exert their authority in order to maintain class discipline. A teacher who takes the line of least resistance does them self and their colleagues no favours.
Teachers who allow themselves to be provoked into extreme responses can end up in trouble themselves. Regulatory bodies frequently have to hold fitness to practice hearings to assess whether a particular teacher has gone over the top in their actions and thus whether they have the right temperament as well as the required practical skills to be a successful teacher. A case in point arose recently when a supply teacher reacted to a pupil mocking him for looking like one of the Chuckle Brothers and then throwing a sweet at him, which hit the teacher on his head. The teacher lost his temper and dragged the boy by his backpack through the school yard and up a flight of stairs in front of other pupils and teachers, causing the pupil concerned to be shaken and injured by the ordeal. The teacher was convicted at the criminal court of battery and ordered to pay a fine of £240 plus £50 in compensation. The teachers regulatory body imposed a prohibition order on him which banned him from teaching for two years, following which he could re-apply for authorisation to teach.
According to recently published data from the Department for Education (DfE), there has been an increase in the number of pupils suspended and expelled from state schools for violent or disruptive behaviour. Last year a total of 7720 expulsion occurred in state schools, amounting to 40.6 per day. In the previous year there were 6685 expulsions, equating to 35.2 per day. Pupils were expelled for a variety of disruptive and violent behaviour, including verbal and physical attacks and sex assaults. 83% of permanent expulsions arose in secondary schools, with boys three times more likely than girls to be excluded. Fixed-period exclusions also rose last year from 339,360 to 381,865 and 170 children aged five and under were permanently excluded with 10,345 subjected to fixed-term exclusion.
As regards child-on-child sexual violence and harassment, the DfE published advice and guidelines for schools in May 2018 on how to deal with such issues (DFE-00155-2018). The advice covers children of all ages from primary, secondary and into college. It is aimed at informing and helping governing bodies, proprietors, Heads, principals, senior leadership teams and designated safeguarding leads. Among other things, the advice sets out what sexual violence and sexual harassment is, how to minimise the risk of it occurring and what to do when it does occur, or is alleged to have occurred.
In City of York Council v Grosset  EWCA Civ 1105 the Court of Appeal rejected an appeal by the council against a finding that they had discriminated against Mr Grosset because of his disability. He was formerly Head of English at his school and suffered from cystic fibrosis. Various reasonable adjustments to help him were agreed and implemented when he joined the school and he turned around the fortunes of a department which had been in disarray. However a new Head arrived who was not personally aware of his medical condition and some of the adjustments for him fell away. He was subjected to an ever-increasing workload and could not cope. His increased work demands exacerbated his medical condition, increasing his stress. Things came to a Head when on the day of one of the exams he showed an 18-rated horror film to a small group of 15-year pupils for the purposes of discussing the construction of narrative. He did so without telling the school he was going to screen it or getting parental consent for doing so. He accepted that he had made an error of judgment and showed genuine remorse. He was nevertheless dismissed for gross misconduct. He was awarded £646,000 in compensation following a finding that the school had acted disproportionately in dismissing him and could have reduced the stress that he was under had reasonable adjustments for his disability had been implemented as required by ss.20 and 21 of the Equality Act 2010. The school should have investigated the reasons behind his particular behaviour as they were aware of his disability.
It was also held for technical reasons that the teacher had not been unfairly dismissed because the school had acted within the range reasonable responses on the information it had at the time when deciding to dismiss him. Such a finding does not prevent a successful claim for disability discrimination.
Schools are having to implement a range of new measures to tackle issues which affect the well-being of pupils. These include instruction about mental health problems, sex education and sexual conduct by pupils. The Government is keen to address some worrying trends amongst children and young pupils which can be tackled at school as well as in the home and wider society. Teachers are often on the front line when it comes to certain incidents. For example, over the past four years there had been approaching 30,000 reports to police of children sexually assaulting other youngsters, including 2625 alleged attacks on school premises and 225 rapes. Boys and girls in primary and secondary schools will be taught about how to respect and enforce boundaries as part of new relationship classes. How to resist peer pressure to act inappropriately online and with mobile phones will also be addressed. The importance of consent to certain types of behaviour will be stressed.
A further initiative for schools is aimed at tackling mental health issues among children, an increasing problem according to reports. Instances of depression and self-harm by children are on the rise and schools are now seen as frontline agencies in tackling the problem. From autumn 2020 it is being proposed that children as young as four will be given lessons in mental health issues such as anxiety, depression and distress. The urgency for action is evident in the light of statistics which show that there were 70,000 incidents of self-harm in secondary schools last year, a figure that has doubled since 2012. In addition, schools are referring almost 200 pupils a day for mental health treatment. More than half of the 34,757 referrals last year to Child and Adolescent Mental Health Services came from primary schools. These covered a range of symptoms or conditions including self-harm, panic attacks, depression, suicidal thoughts, substance abuse and eating disorders.