Last reviewed 29 October 2012

Nigel Baker reviews some of the recent developments relating to teaching staff.

Civil liability

The case of Hammersley-Gonsalves v Redcar & Cleveland Borough Council (2012) EWCA Civ 1135 demonstrates that liability will not be established where a teacher carries out supervision of his pupils during a sport lesson to the best of his ability and in accordance with proper staffing levels.

The case involved an 11-year-old schoolboy, who was struck in the face and injured by a golf club swung without warning by a fellow pupil during the class.

The 22 pupils were given express safety instructions at the start of each class and were told not to swing their clubs or hit anything until told to do so. The pupils proceeded outside in single file to play some holes and their teacher followed them closely from behind, a position where he could see them all. Out of the blue, one of the pupils suddenly swung his golf club and the follow through hit the claimant who was near him and unprepared for such actions.

The Court of Appeal allowed the authority’s appeal against an award of £21,000 damages. The teacher had not been negligent. It was held that the culprit’s action “was wholly unexpected. I do not consider that Mr Fowle’s failure to see the quick and unexpected swing gives rise to a finding of negligence against him. He could not be expected to see every action of every member of the group, wherever he positioned himself.”

In Glennroy Blair-Ford v CRS Adventures Ltd (2012) EWQBD 326, a 45-year-old teacher who was left paralysed in a welly-wanging contest during a week-long school trip to an outdoor activities centre lost his claim for more than £5 million compensation. The injury he suffered was the result of a tragic and freak accident for which no blame could be established. There was no foreseeable real risk and the organisers had carried out a suitable risk assessment for the activity undertaken.

Even though the teachers had a modified method of throwing the welly, as a form of handicap for the benefit of the competing pupils, the catastrophic outcome for the claimant could not have been foreseen.

Criminal responsibility

One of the two Hull teachers who made insulting remarks about locals on Facebook and who both subsequently resigned their posts has pleaded guilty at Hull Magistrates’ Court to a charge of persistently making use of an electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety. She was fined £250, ordered to pay prosecution costs of £85 and a £15 victim surcharge.

A teacher has been convicted of fraud at Cardiff Crown Court for taking months of paid leave ostensibly to look after a terminally ill cancer-stricken young relative. However, when the Head tried to visit the child in various hospitals there was no record of her and it transpired that the teacher had created a fantasy world. Cover for the defendant during her absence cost the authority more than £100,000. She was given 6 months’ imprisonment suspended for 2 years and ordered to carry out 244 hours of unpaid work.

There is rightly a high standard of proof in criminal cases and a defendant is entitled to be acquitted where the prosecution fails to prove a case beyond a reasonable doubt. In R v Cope (2012), a deputy Head in a primary school was found not guilty of assaulting an unruly pupil who was having a hysterical outburst. The defendant had been accused of restraining the boy by his wrists and then slapping him across the face. The boy was described by the deputy Head as probably the worst behaved pupil he had taught in more than 40 years.

Unfair dismissal

To avoid an unfair dismissal finding, an employer must show what the reason, or principal reason, was for the dismissal and that it was a potentially fair reason. The employer must then act reasonably in treating this reason as a fair ground for dismissal in the circumstances and follow a proper dismissal procedure. In Governing Body of John Loughborough School v Alexis (2011) UKEAT/0583/10/JOJ, it was held that the Head of a voluntary-aided school had been unfairly dismissed on the ground of her misconduct whereas the true reason was her incapability. The conduct ground had been used “opportunistically” as the reason for her dismissal so as to avoid a lengthy capability procedure.

Dismissing an employee because they have become pregnant is automatically unfair dismissal. In Raven v Howell’s School (2012) an art teacher at an independent school was held to have been effectively dismissed shortly after she had applied for maternity leave. The school was in financial difficulty and felt it would suffer further hardship from the claimant’s absence. The school asserted that she was losing her job because of the poor take up of art by pupils, but the tribunal saw evidence that the school did not want to “waste money on sick pay and maternity pay” and the dismissal had come out the blue for the claimant.

Bullying and abuse

The latest Ofsted report based on visits to 56 schools has highlighted the fact that offensive name calling is prevalent in schools with many derogatory names being ignored by staff as mere playground or classroom banter among friends. Some insults were based on disability, appearance, race, religion, family circumstances and sexuality, it was claimed. Often, such name calling is part of a bullying culture which should not be tolerated, yet some teachers failed to act as consistently or as decisively as they should to eliminate it. Even though the use of certain words such as “gay” or “slag” may not be directed at other pupils intentionally to cause hurt, it nevertheless feeds into a culture of bullying and lack of respect for others and frequently leads to tensions. In some cases, pupils used words such as “spaz” or “retard” without understanding the underlying meaning of the words.

According to a study commissioned by the Department for Education (DfE) which questioned more than 1600 teachers about standards of behaviour in schools, 25% did not think that there was a good standard of behaviour in their school, although 85% of those questioned said that they felt well equipped to deal with pupil behaviour. Many teachers appear to be reluctant to use traditional methods of classroom discipline, such as detentions and sending unruly pupils to the Head’s office, preferring instead a system of rewards and praise to promote good behaviour.

Concerns over pupil behaviour are supported by recent figures from the Office for National Statistics which show that there were more than 17,000 violent incidents recorded in primary schools in 2011 that led to a child being suspended or expelled. DfE statistics reveal that an average of 89 pupils between 5 and 11 years were ordered out of the classroom each day last year. In both primary and secondary schools, pupils were expelled on 2060 occasions for assaulting or verbally abusing teachers or pupils.

Incompetence

Teachers at all levels have to maintain acceptable levels of professional performance. In a rare case where a teacher has been barred for incompetence, a deputy Head was found guilty of a catalogue of failures which “had serious consequences for the education of pupils”. His list of failures included the most basic deficiencies, such as not preparing or delivering lesson plans, losing exercise books, inadequate marking and a failure to set homework. He will not be able to reapply to teach for a two-year period.