Last reviewed 3 January 2017

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


The last issue of Education Now highlighted the role of specific authorities, including schools, under the Counter-Terrorism and Security Act 2015. Under this legislation, the authorities must report anyone who voices extremist views or who is considered vulnerable to radicalisation. A case having been assessed can be referred to Channel which is a one-to-one mentoring programme. Engagement with Channel is a voluntary mechanism and it is not a criminal sanction. Not all people who are referred are ultimately deemed to require intervention. In the first year of the scheme, more than 2000 children and teenagers were deemed to be at risk of extremism and 4611 people were earmarked for possible intervention by Channel, about half of whom were 18 or younger. In the year to the end of June 2016, there were 2311 referrals relating to under 18s, an increase of 83% on the previous year. Of these, 352 were in the age range of nine or younger, 989 in the range 10–14 years and 970 between the ages of 15 and 17. As regard the specific characteristics of the referrals, in 2015, 70% were linked to Islamist-related extremism and about 15% to far-right extremism. As with other authorities, schools have twin targets to look out for — those who spread hatred and those young people who are vulnerable to such exploitation.

Home and unregistered school education

The incidence of children being taught at home rather than at school still continues to be an issue. As councils have a statutory duty to ensure that all children in their area receive a suitable education, the rising numbers who get non-school based education is causing some concern, partly because of the limited powers currently held by councils. For instance, there is no power to enter homes to see if children are being properly educated and no compulsion on parents to register home-schooled children. The rise of illegal and unregistered schools has exacerbated the problem, particularly in certain areas. Overall, home schooling has risen by 45% over the past five years, especially in regions where there is a high density of ethnic minorities. According to the head of Ofsted, thousands of children were being taught in unregistered schools, half of which were faith-based.

Legal action and schools

The higher education sector has had to face the fact that its students are paying customers since 1998. This brought it into line with fee-paying independent schools who have faced since their inception the prospect of possible legal action for breach of contract by parents. In recent times, there has been an increasing trend in parents threatening or initiating legal action against independent schools where their children fail to achieve the academic results they think the school should have facilitated for them. Such action has plunged some schools into an unwelcome arena in which both sides can end up as losers in terms of costs and reputation. In one ongoing case, a father whose son gained only one GCSE out of the eight he took is suing his school for £125,000. Apparently his teachers had predicted he would achieve at least five exam passes. The father is claiming that the school not only failed his son but others too and cited the school’s academic results in the relevant period. As many educationalists will know, there are many factors that can impact on educational achievement both for specific individuals and for establishments. Proving breach of contract or negligence and then measurable loss directly flowing from such liability is a tall order. General complaints or simple dissatisfaction with school academic attainment are highly unlikely to succeed, although evidence that pupils were underprepared for an exam because the school taught the wrong syllabus or had insufficient or under-qualified staff to prepare, the pupils would strengthen claims considerably.

Schools themselves are increasingly having to resort to litigation to recover unpaid school fees from parents. The most common scenarios are parents simply not paying fees as they fall due and those parents who withdraw their children from a fee-paying school without giving the school the required contractual notice, typically one term.

Pupil numbers and teacher burnout

Mention was made in the previous issue of Education Now of estimates of rising numbers of schoolchildren in the years to come and the implications for class sizes and staff resourcing. According to the Scape Group, the number of school classrooms will need to rise by almost 40% more than had previously been thought as a result of rising birth rates and immigration. By 2020, it is estimated that 24,287 new primary and secondary classrooms will be needed, with demand in the big cities requiring the most expansion. This has a knock-on effect on staff resources and means that future teacher recruitment and retention is a major factor in proper educational service delivery.

If a recent report by the Education Policy Institute is anything to go by then, the need for action is already pressing. This report concluded that the English educational system was unusual internationally in its long teaching working hours, low levels of staff professional development and a seemingly high burnout rate for teachers. Coupled with what the report stated were relatively low starting rates of pay for teachers, this meant that a serious problem existed. A fifth of teachers in England reported working 60 hours or more, with marking or administration taking up the extra time rather than teaching. Full-time teachers worked an average of 48.2 hours per week, which was 19% longer than the average of jurisdictions elsewhere.

Sex and the school

A recent report by the Women and Equalities Committee has found that most girls and young women had faced some form of sexual harassment at school or college. A third of girls aged between 16 and 18 said that they had experienced unwanted sexual touching at school. Girls are also the victims of sexual verbal abuse which is offensive, humiliating and demeaning. Although the calling of names at school can be viewed by some as mere banter, when terms have a sexual connotation, this moves into sexual harassment and bullying. Such behaviour has many harmful effects on the victim, undermines his or her confidence and can colour relationships with the opposite sex. Exposure to online images and sexting has increased the problem. Schools have an important role in preventing harassment in all its guises and educating young people in the norms and boundaries of acceptable inter-personal contact.

According to the latest statistics, there were 2031 offences involving the sending of indecent images where someone under 18 was involved, representing one sixth of the total number. South Yorkshire Police recently stated that out of 408 cases of sexting reported last year, 238 involved a suspect under 16. Many young people do not seem to realise that sending an indecent image of someone under the age of 18 is illegal, even if it is a picture of themselves. A criminal record for such an offence can also lead to the offender having to sign the sex offenders’ register. However, the National Police Chiefs’ Council issued guidelines last year which recommended that police forces attempt to avoid criminalising youngsters for sexting and to try where possible to educate the culprits concerned. This approach has been supported by the National Institute for Health and Care Excellence (NICE) who also highlights the “dangers of stigmatising” young people with drastic intervention with longer-term implications. NICE’s committee was keen to state that children and young people who exhibited harmful sexual behaviour were not “mini adult sex offenders” and potentially stigmatising them as such was the wrong approach. In many cases, young people simply grew out of behaviour such as sexting. However, early intervention was the key to preventing young people from becoming victims and perpetrating undesirable behaviour. Agencies, including schools, were urged to collaborate to protect children and utilise an online tool which uses a traffic light system to categorise risk progressively according to the age of the individuals involved and the type of behaviour.