Last reviewed 11 July 2016

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

Term time holiday absence

Since the last legal update, there have been further developments in the controversial issue involving parents taking their children out of school during term-time, whether for holidays or for other purposes. Following the victory on the Isle of Wight (IoW) by parent Jon Platt who was prosecuted for taking his daughter on a family holiday to Florida for seven days during term-time, the case went on appeal to the High Court for further clarification. The IoW Magistrates had found that Mr Platt had no case to answer because his daughter’s attendance at school over the whole year was 92%, indicating that she had actually attended school “regularly” as required by s.444(1) of Education Act 1996 and the Education (Pupil Registration) (England) Regulations 2006 as amended in 2013.

This decision has now been upheld by the High Court which ruled that in the context of regular attendance, the overall record of the pupil had to be examined in order to assess this. (Isle of Wight Council v Platt [2016] EWHC 1283 Admin). The High Court stated that “...the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’'s record of attendance.” The IoW Magistrates’ court had, thus, been within their powers to rule as they did and they had not erred in law.

According to the Department for Education (DfE), the number of pupils missing school for unauthorised family holidays has increased by 12% in a year and totalled 270,220 during the autumn term 2015. Since the High Court ruling the incidence has increased with travel agents reporting a surge in bookings for family holidays during term time. In view of the latest court ruling, many local councils have shelved plan to prosecute parents for failing to ensure that their children attended school regularly, such as Devon County Council which recently announced that they were dropping the prosecution of the parents of two teenage girls who allowed them to miss school for a week in order to attend a beach volleyball elite camp for international players in Tenerife.

Following the High Court ruling, a number of parents have sought refunds of the fines imposed on them up and down the country in the past following prosecutions but this is being strongly resisted by local councils. A further legal challenge is being planned by a Muslim mother who has been threatened with a fine for taking two of her children out of primary school to go on a pilgrimage to Mecca during term time having been told that such absence was unauthorised by the Head of the school.

It has now been announced that the IoW has formally applied for permission to appeal the High Court ruling to the Supreme Court for ultimate clarification. Such application can be granted either by the High Court or the Supreme Court itself. Should this happen, the DfE will be itself represented in the case in addition to the specific parties.

The DfE minister has stated that he is disappointed by the High Court ruling and has apparently told Heads to ignore it and to continue to fine parents under the existing regulations where they take their children on unauthorised holidays during term-time. According to the minister, the High Court ruling does not create a precedent or a hard and fast rule. However, a High Court decision binds the Magistrates Court and it would be more accurate to say that in any future case the latest High Court ruling would have to be distinguished on the facts. This is not a simple as it would seem and a court would still have to decide the meaning of “regular” attendance somehow and would inevitably have to look at particular percentages in the specific pupil’s attendance record.

The minister acknowledges that a decision will depend on the individual facts in each case but the legal basis for deciding whether there has been regular attendance will have to be applied and followed as per the High Court ruling unless it can be successfully distinguished in a material way by a local authority in any particular case. This remains to be seen, although pending any Supreme Court ruling down the line, the Minister has already said that the Government is willing to change the law if required.

If Heads are to be allowed to continue to exercise their discretion albeit in exceptional circumstances to authorise absence during term-time, where it is refused and parents are prosecuted any new regulatory regime will have to be made much more prescriptive to avoid continuing disputes about what constitutes “regular” attendance. One initiative which has been suggested by the Minister is that schools and academies should join together to change their school term dates which could help in the case of holiday requests for absence but not in other more specific situations. A recent attempt to by Barnsley Council to restructure its school term term-time dates met with opposition and was dropped.

Unfair assistance and pressure

Teachers must not allow their loyalty and feelings for their pupils to compromise their professional standards. This danger is evident when teachers try to give their pupils an unfair advantage in assessments and exams. A case in point was the recent disciplinary action taken against a Head of Biology who was struck off indefinitely from teaching, having helped his students to cheat in their coursework and then compounding the wrongdoing by lying to cover up his actions, including asking some of his pupils to lie on his behalf. The teacher said he was under pressure to achieve better and better results among his A-level and AS-level pupils but this was obviously no defence to the charge of unacceptable professional misconduct.

It is not just the teaching staff who are under pressure when it comes to academic attainment. According to a recent study by the University of Manchester, more than a quarter of teenage suicides are triggered by exam stress and other consequences include a variety of health and relationship problems suffered by pupils. Coupled with the pressures of evils such as cyberbullying, this can lead to anxiety, depression, self-harm and eating disorders. Such pressures also had a knock-on effect on schools that struggled to provide the specialist support for some troubled pupils.

A survey of 11,902 pupils by the Girls’ Day Trust found that the majority of them wanted strict teachers who helped them to attain top grades and “anxious” parents were putting their children under pressure to perform well. Twenty five per cent of pupils said that they wanted teachers who were “creative and fun” and 60% said that they preferred teachers who were “firm”, challenged them and who explained things well.

School dress codes

There has been much publicity recently about schools changing their pupil uniform policies to make them gender-neutral. In such policies, references to girls and boys have been dropped and although there is a uniform, the rules for boys and girls are the same. While some have suggested that this will result in boys coming to school in skirts if they want, the initiative has also been welcomed as an enlightened and anti-discriminatory measure and has been adopted by over 80 state schools, including 40 primaries.