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

Loss to the profession

The Association of Teachers and Lecturers (ALT) has again highlighted what it describes as the “teacher recruitment and retention crisis” and states that there are several reasons for this, according to its most recent survey of members. Although 93% of respondents cited workload as the main reason for dissuading people from entering the profession and 91% said poor work–life balance, the lack of respect for teachers was also significant with teaching, frequently not being recognised as a high-skilled and high-status profession, according to 64% of respondents. Eighty three per cent of teachers said that they had considered leaving teaching as an occupation and there were teacher shortages in many schools, which in turn added to the workload of the existing staff. Sixty two per cent reported challenging pupil behaviour and 48% cited pay rates, as the reasons why people do not want to enter the teaching profession.

The effect of poor morale can also add to workplace stress and affect health and wellbeing. According to a survey by the National Association of Schoolmasters Union of Women Teachers (NASUWT), 25% of teachers find themselves trying to cope by turning to medication, alcohol and tobacco. At the extreme end, 3% of teachers reported self-harming due to workplace pressures. A religious teacher, who partly blamed workplace stress for stealing £60,000 from the school fund, established to help fund holidays for disadvantaged children, received a two-year jail sentence, suspended for two years and was ordered to undertake 200 hours of unpaid community work for her fraudulent actions in breach of trust.

An essay by the Policy Exchange think tank has highlighted the burn-out rate for teachers, with 29,000 leaving state schools before retirement age. Additionally, a further 6000 female teachers, aged 30–39 years, left the profession to look after their own children. Career breaks or sabbaticals with keeping in touch days are mooted as one solution.

Compensation for staff

According to NASUWT, during the past twelve 12 months, teachers who were members of the union have received more than £16 million due to accidents and other incidents at work, including personal injury claims, criminal assault and unfair dismissal. This seems to be an increasing trend over the last three years. It could be explained by either a worsening of good employment and health and safety practices or a more litigious workforce. Either way, if teaching staff suffer injuries at work, it is a serious matter which cannot be taken lightly. Payments included £100,000 for a teacher who banged their head on a concrete floor after the chair they were sitting on broke apart because three bolts were missing from the furniture. The incident resulted in injuries to the teacher’s back, neck and leg.

Another teacher received a package of £55,000 compensation having tripped on a tear in the lino surface of the science classroom. A teacher who was pushed over by pupils on two separate occasions suffered serious back injuries, including a slipped disc, and received £185,000 in compensation. The ALT reported securing more than £5 million in compromise agreements for members and one National Union for Teachers (NUT) member received £171,000 from the Criminal Injuries Compensation Authority, having been seriously assaulted by an intruder who had gained access to the secondary school where they were working.

Home schooling

The exact number of children who receive their education at home without formally attending school is uncertain but seems to be increasing. Those parents who decide to pursue Elective Home Education (EHE) for their children do so for a variety of reasons and the regulation of this by local authorities is not consistent. It is estimated that up to 100,000 children are missing from school on a permanent basis and get their education by other means at home, although the official statistics suggest that the number is approximately 33,000. Parents are not required to register or seek the approval of the Local Authority (LA) to pursue EHE but must assume the full financial responsibility for doing so, including the cost of any public examinations.

As a parent, there is a statutory duty to ensure that your child accesses a suitable education between the ages of 5 and 16 years. Section 7 of the Education Act 1996 (EA 1996) states that: “The parent of every child of compulsory school age has a legal duty to ensure that he (or she) receives efficient full-time education suitable to his (or her) age, ability and aptitude, and any special educational needs he or she may have, either by regular attendance at school or otherwise.”

According to the Education Act 2007, LAs have no statutory duty to monitor the quality of home education on a routine basis. However, under s.437(1) EA 1996, LAs can intervene if it appears that parents are not providing a suitable education. In Harrison & Harrison v Stevenson (1981), a “suitable education” was defined as one which could “prepare the children for life in modern civilised society and to enable them to achieve their full potential”.

LAs are allowed, and some areas are very proactive-active in this, to make enquiries about whether children receiving home school education are fulfilling their individual abilities. Section 437(1) EA 1996 stipulates that: “if it appears to the LA that a child of compulsory school age in its area is not receiving suitable education, either by regular attendance at school or otherwise, it shall serve a notice in writing on the parent requiring him (or her) to satisfy the LA within the period specified in the notice that the child is receiving such education.”

LAs are encouraged to make informal enquiries before serving a notice on parents, and parents are advised that it would be sensible for them to respond to any informal enquiries, despite them being under no duty to do so. If the LA is unhappy about the provision, it will write to parents to explain their concerns and ask for further information. In rare cases, if the local authority remains unsatisfied with the EHE provision, it can issue a School Attendance Order which requires parents to either provide further evidence of education or enrol the child at a school named in the Order within 15 days. Such an Order can be challenged in court. The LA must act in the best interests of the child.

Some evidence was presented at a House of Commons Education select committee to the effect that a few schools were driving parents into providing home schooling for their own difficult pupils so that the school’s attendance and exam results records were improved. The DfE has strongly criticised the notion of schools offloading pupils in such circumstances.

Absence from school

In the continuing saga of parents taking their children on holiday during school term-time, in a twist to the usual circumstances, a mother successfully defended four charges of failing to ensure the regular school attendance of her two children, one of whom suffered from autism. She argued that her autistic son was more anxious when taking holidays during the more crowded school holiday period and, also, that her sons had an overall attendance record of over 90%, so were still attending “regularly” as required by law. In contrast, a couple who took their two young children out of school without authorisation to visit a re-enactment of a World War Two II battle, which had a special significance to the family, were ordered by Blackpool magistrates to pay over £600 in fines and costs for failing to ensure that they attended school regularly.

The absence problem was recently brought into focus by a Birmingham primary school Head who revealed that she had 18 pupils absent from school on unauthorised early Easter holidays, with pupils missing 530 days of education during the year due to unauthorised absence. According to the DfE, research showed the negative link that absence has to attainment, with every extra day lost associated with a lower chance of achieving five or more good GCSEs, which in turn can have a damaging effect on those pupils’ life chances.

Last reviewed 2 June 2016