Last reviewed 27 May 2019

Nigel Baker of Lexicon Employment Law Training highlights some recent developments in the Education field.

Recent cases

In R v McCormick (2019), an experienced and highly respected 67-year-old primary school teacher who was charged with assaulting a disruptive pupil who was running instead of walking towards the changing rooms after a PE lesson, has been acquitted at Chester Magistrates’ Court. In evidence, the teacher said that the boy had started name-calling and ran off when the class had been told to walk. She shouted his name and then held him lightly by the shoulders to confirm the “no running” rule. She had acted at all times in accordance with her training when dealing with the situation. The judge said that the case had been brought on the flimsiest of evidence and fell “a very, very long way short” of leading to a conviction.

The question of the suspension of an employee was the issue in London Borough ofLambeth v Agoreyo (2019) EWCA Civ 322. A primary school teacher was alleged to have used inappropriate force against two children in her class, both of whom displayed challenging behaviour. On being informed that she would be suspended while the allegations were being investigated she resigned and claimed that her suspension amounted to a repudiatory breach of the implied duty of trust and confidence owed by the school. It was held that the proper test was whether the Head had reasonable and proper cause to suspend, not whether it was necessary to suspend the employee. On the facts there had been no breach of contract by the school.

In Governing Body of Sutton Oak Church of England School v Mr M Whittaker UKEAT 0211/18/1312, an error of law in the employment tribunal’s decision concerning the appropriate technical comparator to be used lead to an initial finding of direct sexual orientation discrimination being remitted to a new tribunal for consideration, although a finding of unfair dismissal was unchallenged. The claimant, a male gay HIV-positive primary school teacher had been dismissed for being in a classroom alone with a Year 5 boy during a lunch-time break and offering him sweets, both actions being in breach of guidelines issued to him because of similar conduct a few years earlier. He had been dismissed after a disciplinary process.

It was held on the facts in The Governing Body of Tywyn Primary School v Mr M Aplin UKEAT/0298/17/LA that the adverse treatment of a gay Head amounted to constructive dismissal and sexual orientation discrimination. The teacher had been dismissed for having sex with two 17-year-old males he met on the dating app Grindr. No criminal offences had arisen and no child protection issues arose. The EAT found that he would have been treated differently were he a heterosexual male having sex with two teenage girls, or a woman having sex with two teenage boys.

Disorder and exclusions

The number of schools which maintain police officers on their premises has risen. At least 17 police forces in England now deploy officers in schools. Currently, there are 420 officers working full time in schools with a future target of just under 600 according to the Assistant Commissioner of the Metropolitan Police. A recent analysis from the Metropolitan Police reveals that teenagers and children as young as 10 make up half of London’s knife crime offenders and 20% of victims of violence last year in the capital were teenagers, most of whom were stabbed.

The purpose of the police presence in schools is to keep pupils safe and to demonstrate that the police were approachable and were adults which they could trust. In addition, the officers were able to assist teachers in dealing with those pupils who are vulnerable to gang grooming and to share intelligence with senior school staff about patterns of gang activity in their local area. Schools are increasingly being involved in tackling knife crime and highlighting in class the consequences of carrying a knife or blade.

The upsurge in knife crime among youngsters has been linked by some to the number of pupils who have been excluded from mainstream schools. Permanent exclusions from schools have risen significantly in England from 4630 four years ago to 7700 in 2017. The number of primary-age children who have been permanently excluded from school and placed in pupil referral units (PRUs) has more than doubled since 2011. The DfE statistics show that nearly 1600 children aged 5–10 years were moved to PRUs last year with 40 of them being under the age of five. Although the DfE states that the purpose of PRUs is to work with vulnerable young people who have complex problems and who receive support and mentoring in smaller classes with more specialised teaching, a recent Ofsted report warned that gangs were persuading pupils to take knives into schools so that they are excluded where they can fall prey to gang life without the familiarity and structure of school thus increasing the risk of falling into crime. Schools must follow the statutory guidance before expelling pupils and need to provide early interventions and assessments of children and their home life before taking the decision to exclude. The likelihood of self-harm, abuse or neglect are significant and vulnerable children are ripe for exploitation by gangs both in terms of drugs and sexual abuse. Government ministers are carrying out a review into school exclusions and may yet legislate to curtail schools’ exclusion powers.

On a related front, some 19,000 children a year disappear from school rolls between years 10 and 11 and it is alleged that many pupils are pressured into leaving by schools to protect their school’s exam results. Such children may then follow a path into crime and violence having been targeted by gangs. Off-rolling by some schools was highlighted in an Ofsted report in 2018 which found that 300 schools had high levels of off-loading, particularly where pupils disappear from the school register just before GCSE exams. While there are many genuine reasons to explain this, such as pupils joining other state or private sector schools, special schools, alternative provision schools, unregistered schools or being homeschooled, a proportion just simply disappear receiving no education or qualifications and open themselves up to exploitation.


Estimates vary as to the number of children who are educated at home. A report by the Children's Commissioner for England put the figure at almost 60,000 in 2018, up by 27% on the year before. Other estimates state that as many as 80,000 children are missing from official records. Off-rolling by schools may account for some of the number but in other cases it is the parental preference. At present, there is no compulsory register of children being home-schooled but the Government is currently contemplating introducing one. This is partly because of a concern that such children need protecting from “dangerous influences”, such as radicalisation from religious fundamentalists in secret schools and it would also deter schools from off-rolling disruptive pupils with the intention that their parents homeschool them instead.

Although parents will be under an obligation to register their children under the Government plans it also proposes to increase support for home-educating parents, with local authorities being required to provide teaching resources or financial contributions towards GCSE and other exam fees. A public consultation on the Government’s proposals will run until 24 June.

Holiday fines

Since the landmark Supreme Court decision in 2017, the number of parents fined for taking their children on holiday during term-time has risen sharply; 260,900 penalty notices were issued in 2017/18, up by 75% from the previous year; 223,000 of the fines related to unauthorised family holidays. Under laws passed in 2013, Councils may fine parents £60 for each child taken out of school, rising to £120 if this is not paid within 21 days and parents may be prosecuted after 28 days. Plans to fine parents £1000 by one county council may contravene the 2013 rules and have generated much comment in the media.