Last reviewed 13 February 2018

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

It was held in Regina (Interim Executive Board of Al-Hijrah School) v HM Chief Inspector of Education, Children’s Services and Skills (2017) EWCA Civ 1426 that a mixed-sex Islamic school could not segregate pupils throughout the school day. The school was a voluntary-aided faith school for boys and girls aged between 4 and 16 and operated a policy based on an Islamic ethos to separate boys and girls from the age of nine.

Such a policy was deemed a detriment that involved less favourable treatment and amounted to sex discrimination notwithstanding the school’s motivation for their policy, which was based on conscientious adherence to what it regarded as the application of the tenets of Islam. The policy amounted to direct sex discrimination contrary to ss.13 and 85 of the Equality Act 2010 because it had the effect of diminishing the quality of education that the girl pupils and the boy pupils would receive for their respective sex.

Mixing and social interaction had always taken place, and it was the denial to girl pupils of the benefit and facility of such interactions with boy pupils that constituted both the detriment and less favourable treatment giving rise to unlawful discrimination. Boy pupils were similarly denied the mixing and social interaction between girl pupils, which was unlawful to the boys in question. The court held that pupils of both sexes were left less prepared for adult life by their inability to interact with each other.

It has been estimated that only about 20 Islamic, Jewish and Christian schools will have to amend their policies with regard to the segregation of pupils. Single-sex schools would be unaffected by the ruling and it would remain lawful to separate pupils for legitimate educational reasons, such as in PE, sex and health education.

In an important ruling regarding the liability of local authorities to provide education, it was held in R (E) v London Borough of Islington (2017) EWHC 1440 (Admin) that the council had breached Article 2 of the First Protocol to the European Convention on Human Rights (A2P1) which provides an individual with a human right to education. This had particular relevance towards homeless children of compulsory school age who had failed to be provided with full-time education, the family in question having been given temporary homeless accommodation in another London borough. The applicant was awarded costs and compensation to be determined.

Cheating in exams and assessed work

The fact that some pupils try to cheat in exams is not new. Yet the methods used become more ingenious and the pressures to attain better marks grow year on year and provide a strong incentive to take unfair advantage. According to Ofqual, the exams regulator, there were 2715 penalties issued to pupils in 2017, an increase of 25% on the year before. The rise of electronic devices and the fact that they are able to be concealed relatively easily has added to the problem.

Collusion between pupils and in some cases, the staff or invigilators, can circumvent precautions or the rules in the exam room. Where exam material is available to a few in advance of a particular paper, this might be improperly leaked or shared. There were 895 penalties issued to school or college staff in 2017, an increase of 149% on the previous year.

With regard to staff, nearly half of penalties were issued for maladministration of exams, while a third of penalties were issued for giving improper assistance to candidates. Ofqual defines malpractice as anything that could “undermine the integrity of an exam” and this is a wide concept covering the actions of both pupils and staff.

While there has been an increase in penalties issued to both staff and pupils, it is important to get things into perspective because the vast majority of candidates and staff play by the rules. There were over 18 million GCSE and GCE papers taken at 5000 schools and colleges, so there are only a very small minority of transgressors. But the possibility that teachers themselves are culprits strikes at the very heart of the education system. By acting in breach of trust and breaching their contracts by gross misconduct, such teachers undermine public confidence in the system and those caught can be punished professionally, as employees and individuals, through the legal system.

Plagiarism of coursework by pupils continues to be an issue for material completed and submitted for assessment and, although software packages exist to examine work for originality, it can be difficult to detect all attempts to pass off assessed work as legitimate. Furthermore, teachers themselves can be tempted to provide unfair assistance to their pupils with the submission of pupils’ work for assessment which is then treated entirely as the pupils’ efforts.

Pupil drug use

A recent report released by NHS Digital based on research carried out by Ipsos MORI involving 12,051 school pupils from 177 schools provides much food for thought. 24% of 11–15-year-olds in England said that they had used drugs at least once, a rise from 15% in 2004. However, this increase may be partly fuelled, by approximately 3%, by the latest research asking children new questions about their use of nitrous oxide (N2O) and new psychoactive substances, formerly known as legal highs. Cannabis remained the most favoured drug, which had been tried by 7.9% of pupils in the previous year. 4.4% of pupils had tried glue sniffing and 4% had experimented with N2O. The report found that 44% of pupils had tried alcohol at least once, with girls more likely to have been drunk in the past four weeks. 10% of pupils reported having drunk alcohol in the last week. The total number of pupils who said that they had smoked tobacco continues to decline, reducing from 49% in 1996 to 19% in 2016, with girls marginally more likely to have smoked a cigarette than boys. 25% of pupils said that they had inhaled an e-cigarette, up from 22% in 2014, although only 2% of pupils said that they regularly used one.

The fact that for the first time drug misuse has now overtaken cigarette smoking by pupils aged 11–15 years highlights the need for education, guidance and deterrence on drug use both at home and at school. Teaching young people about the risk of taking substances or alcohol is key. The ability for pupils to make informed choices about their lifestyle and health is heavily dependent on them receiving supportive and evidence-based education at school.

Worryingly, the number of schoolchildren who supply drugs at school seems to be on the increase. It has been reported last year that five pupils every day were being arrested for dealing drugs and in 2015, police caught almost 2000 “playground pushers”. A range of drugs were involved including heroin, cocaine, ecstasy and cannabis, with some pupils as young as 11 responsible. If that wasn’t bad enough, occasionally teachers are the culprits by dealing drugs to their pupils. A case in point arose last year when a secondary teacher was jailed for 15 months having pleaded guilty to three counts of supplying Class C drugs, three counts of importing a Class C drugs and possession of heroin. In addition to the criminal dimensions, this conduct was a gross breach of trust by the teacher towards those pupils to whom she owed a professional responsibility.