Last reviewed 9 May 2017

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

Recent court decisions

In Wallace v Secretary of State for Education (2017) EWHC 109 (Admin), the High Court decided that there were exceptional circumstances which justified allowing an appeal by a “super head” against the decision of the Secretary of State for Education to impose a prohibition order against him thus prohibiting him from working as a teacher. This order was stated to be capable of review after a minimum period of two years. He had already been summarily dismissed from his post for his misconduct. The teacher in question had then been found guilty of unacceptable professional conduct by a professional misconduct panel of the National College for Teaching and Leadership. This was because he was found to have breached financial governance standards as a result of which he had failed to ensure the appropriate use of public funding in excess of £1 million, failed to disclose a conflict of interest and improperly provided confidential information to a connected individual in the course of a competitive bidding process. The preferential treatment resulting in them winning IT and marketing agreements with the five partnership schools under Mr Wallace in preference to a former contractor. Under the statutory disciplinary scheme, only two sanctions were available, a permanent prohibition or publication of the decision of the disciplinary process including details of the findings of misconduct proved.

It was held that the Secretary of State should have acknowledged that publishing the adverse findings of the misconduct was highly likely to affect a teacher’s professional reputation and thus their employment prospects and should therefore be regarded as a considerable sanction in itself. The Secretary of State did not take into account and weigh this alternative before deciding to impose the greater sanction of a prohibition order. This, together with the failure to apply any proper proportionality test when imposing the sanction of a prohibition order, rendered the decision unjust and wrong. The public interest in retaining a person who was able to make a valuable contribution to the teaching profession could be a factor carrying considerable weight when considering the imposition of a prohibition order. Rather than remit the case for further determination the court allowed the appeal, dealing with the matter itself. The individual’s conduct had not been subjectively dishonest, was out of character and he had shown remorse. In terms of severity, his conduct was deemed to be on the cusp or threshold for imposing a prohibition order and he was considered an inspirational educator who was dedicated and devoted to his work in teaching.

The case of O’Brien v Bolton St Catherine’s Academy (2017) EWCA Civ145 raised a number of important legal and practical points about the treatment of a senior member of staff who had been off sick for 17 months following an assault on her at school by one of her pupils. The teacher, who had been Head of Information and Communication Technology for six years at the time of the assault, then suffered a range of ailments which caused her absence from school, including post-traumatic stress disorder, anxiety and depression. She was subsequently dismissed for medical incapacity after over a year’s absence from work following a completed internal procedure by the school.

It was held that her employers should have obtained a further assessment by their own occupational health advisors regarding the employee’s latest medical evidence which purported to show that she was now fit to return to work, even though the evidence was not wholly satisfactory and produced on the day of the appeal. The view of the initial tribunal that her dismissal on incapability grounds was unfair was not perverse and therefore could not be overturned even though it was a borderline decision due to the length of the employee’s absence and the unsatisfactory evidence about when she might be fit to return.

In the well-publicised case of Isle of Wight Council v Platt (2017) UKSC 28, it was decided that a pupil’s school attendance was only “regular” when it conformed to the rules prescribed by the school. The parents of a pupil with more than 90% attendance would still be in breach of their statutory duty under s.444(1) of the Education Act 1996 if they removed their child for a holiday during term time. This legal decision is also based on public policy and it attempts to end the uncertainty surrounding the growing trend of unauthorised absence from school of pupils due to holiday arrangements. The Supreme Court stated that there had to be certainty as far as criminal offences were concerned and there could not be a piecemeal approach to term-time pupil absence across the country. Following the Divisional Court ruling upholding the magistrates’ court decision last year that a parent had no case to answer against the charge under s.444(1) of the Education Act 1996, at least 28 local education authorities unilaterally adopted a more lenient stance on prosecutions of parents, some applying a 95% pupil attendance threshold for compliance. Some others simply put an embargo on prosecutions and others took the stance that it was permissible to take pupils out of school for holidays without Head’s approval. It was reported that some parents who have booked holidays in term time on the strength of local council advice and who now face the risk of being fined or prosecuted for their child’s absence in view of the Supreme Court ruling are intending to mount a class action for damages having been misled over the matter. Last year about one million pupils missed lessons having taken a family holiday during term time.

Sexting and internet use

Despite it being a wonderful technological tool and an instant gateway to information, the internet can have considerable dangers for those accessing it. As a negative transmitting channel, it can be exploited by those with an inclination to bully, embarrass, threaten, harass, humiliate or blackmail. The blight of cyberbullying has been apparent for a number of years, with both Childline and Bullying UK reporting increases in calls relating to cyberbullying of 88% and 77% respectively over the year. However, a recent study by the University of Warwick has made the point that the vast majority of victims of cyberbullying are those children who were already being bullied in other ways, so few new victims were being created.

A study by Sheffield University has found that using the panoply of social media to chat online can make children less happy in almost all areas of their lives. More than three-quarters of 10–12-year-olds have social media accounts through which they communicate with their friends. The amount of time that those aged between 8 and 11 spend online has more than doubled in the last decade. Even chatting for one hour a day online was found to make children less happy about important aspects such as their school, work performance, their family and life in general. Although there were some clear benefits associated with using social media, overall the end result was negative, especially for girls and their perceived appearance. Apparently, three children per class are suffering from anxiety fuelled by social media.

Elevating the veracity of content found on the internet is also becoming a problem for an increasing number of pupils. Fake news does not just have implications for politicians — a third of teachers in a recent survey reported pupils citing fake or inaccurate information from the internet in the course of their work and during classroom discussions. The online medium appears to validate the content found as if it were a school textbook. Teachers are redoubling their efforts to impress on pupils the need for critical thinking and judgment in order to assess the plausibility of material found online.

Mental health

The pressures of social media also contribute to the problem of mental health issues faced by some pupils, an important welfare issue which has recently been highlighted in an NASUWT survey involving 2000 teachers. The findings revealed that 60% of teachers had experienced behaviour indicating mental health problems in pupils aged 15–16 and it was evident even in children as young as four. The Government is trialling two programmes in secondary schools from May which introduce various class strategies to promote wellbeing and happiness. The initiatives will cover handling stress, depression, crisis, suicidal thoughts and self-image.