Last reviewed 6 November 2017

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

Legal decision

In Hartley v King Edward V1 College (2017) UKSC 39, the thorny issue of the correct deduction to impose from a sixth-form college teacher’s pay for strike action taken was finally resolved by the Supreme Court. Sixth-form college teachers are employed under a collective agreement known as the Red Book, whereas school teachers are governed by a collective agreement known as the Burgundy Book. This was significant in this case when it came to calculating the amount of a lawful deduction in the event of strike action being taken by a teacher. The law relating to this issue is contained in the Apportionment Act 1870 and the Employment Rights Act 1996. If the employer was entitled to deduct 1/260 of a teacher’s annual pay rather than 1/365 of annual pay, this would clearly have a greater financial impact on striking teaching staff. Under the 1870 Act, income was deemed to accrue from day to day, although s.7 of the 1870 Act allows for there to be an express stipulation in the contract disapplying the statutory formula so that no apportionment on a daily basis took place. Although the Burgundy Book contained an express term that the correct deduction basis was 1/365, there was no express provision in the Red Book collective agreement. In other respects, the two applicable collective agreements were the same. The court held that the contract in question was an annual one, paid monthly, for a wide variety of directed and undirected work with no distinction between the days on which it was carried out. Activities other than teaching covered many other days of the week, including evenings and weekends. Accordingly, in the context of an annual contract s.2 of the 1870 Act dictated that the proper apportionment was 1/365 not 1/260.

Fines for lateness

Fresh from their victory in the recent Supreme Court ruling in which a parent was ultimately fined £2000 and given a 12-month conditional discharge for taking his seven-year-old daughter abroad on holiday during term time, some local authorities (LAs) and schools are implementing a policy of fines for parents whose children arrive late for school. This is the logical application of the principle that pupils’ attendance at school is essential to good educational and behavioural standards. LAs have the power to establish guidelines for issuing fines for schools within their jurisdiction and central Government is supportive of those authorities who have done so or aim to do so in future. The Department for Education (DfE) states that it is right for schools to monitor pupil punctuality and to address it where it becomes a matter of concern. It is up to individual schools to decide precisely when to close their attendance registers and to take punitive action which is in accordance with their LA’s code of conduct. There are currently differences in policy across the country. The definition of “persistent” lateness varies between authorities, as does the mechanism for fining parents.

Compensation for teachers

As in previous years, teachers have secured compensation for a variety of harm suffered while working in the school environment. The NASUWT secured compensation of £27.7 million for teachers against their employers in the year 2016–17. The figures reveal a 72% increase in compensation won by the union for its members over the year. Compensation payments were for a variety of events befalling the teaching staff, including violent attacks from pupils, injuries and discrimination. The ALT teaching union’s regional officials recovered £4.7 million for members through settlement agreements and the union’s solicitors secured more than £300,000 for members who had potential employment tribunal claims.

An NUT member was awarded £125,000 for significant and debilitating psychiatric injury following a sustained period of harassment and bullying. In one settlement, a teacher received more than £98,000 relating to serious psychological injuries after an assault by a pupil. Another teacher received £48,000 having been subjected to a prolonged assault by a female pupil who flew into rage after being told to stop chewing gum.

Violent pupils

According to the DfE, there has been a 75% increase in the number of primary schoolchildren expelled by schools for attacking teachers. A third of primary schoolchildren who were permanently excluded in 2016 had attacked a teacher, making this the second biggest category after persistent disruptive behaviour. A further 8% were excluded for verbally assaulting teachers. It would appear that some young pupils think nothing of coming to school with weapons. This trend for teenagers carrying weapons both inside and outside school is a worrying one because it is being copied by younger pupils, some as young as five years old. Of the 2579 weapons seized last year by 32 police forces across the country, at least 47 children under 10 were found in possession of weapons, including three five-year-olds, one of whom had a knife and another a missile. A range of dangerous items were confiscated including samurai swords, axes and air guns. Knives accounted for 20% of items removed.

Another troublesome development is that acid and other corrosive liquids are becoming the new weapons of choice for some schoolchildren. There are several reasons for this. First, as schools become more effective at detecting conventional solid items such as bladed weapons and firing pieces, the alternatives can be more easily smuggled on to the school premises in various receptacles such as drinks bottles. Second, it is considerably easier and cheaper to acquire harmful acid like substances, which can be found in basic household cleaners. Third, it is easier to squirt or spray a harmful substance towards a victim rather than stab or shoot someone and then to get away with the deed. “Dosing” a victim with acid or ammonia can cause serious harm, including eye damage. Schools have to be aware of this trend and be vigilant as to what is being brought on to the school premises, although the practicalities of checking pupils’ property needs to be thought through. In the end, it is only by a process of educating and counselling young people as to the dangers and risks of carrying weapons that this practice will be reduced. Apart from the aggressive reasons for carrying weapons, many carriers said they did so for defence, as protection and to act as a deterrent against attack. Schools, working with other agencies such as the police, can help to make pupils understand that generally those who carry weapons are more likely to be attacked than those who do not.

Bullying

While the dangers of pupils bullying by sexting are well understood by teachers, a recent survey of 110,000 15-year-olds by Oxford University has found that the playground is still the place where the worst bullying occurs. Although a third of teenagers are regularly bullied, online abuse and cyberbullying are less of a problem than playground abuse and taunts. 36% of girls and 24% of boys reported having been bullied at least two or three times per month. Cyberbulling was mainly directed at those children who were already singled out face to face. Only 1% of teenage victims reported being bullied online but not in person. 27% of those surveyed were found to have been bullied face to face only, while a third were bullied regularly in either form. The most common examples of bullying were name calling, mockery and teasing, while in terms of cyberbullying it was cruel online communications and unflattering or inappropriate pictures posted online without consent. In a depressing twist, it has been observed that parents who brag online about their children’s attributes and achievements make those children more likely targets for bullies. The harmful effects of being bullied in any of its forms include making victims more miserable, less happy and more prone to experiencing mental health problems.