Last reviewed 15 December 2015

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

Term-time absence fines

This is a topic which seems to be ever in the news and remains controversial. When the government introduced a more stringent fines mechanism for parents in 2013, there were bound to be hard cases. The fines regime can be a blunt instrument which catches the wide variety of reasons why a pupil might not be in school during term-time. With the scope for discretion by Heads reduced and blanket policies operated across some regional authorities, it was inevitable that friction would mount.

This was further increased in October 2015, when it was announced that the Government intends to automatically dock the child benefit of those parents who have not paid “truancy fines” after 28 days. Where the parents do not receive child benefit but do not pay the fine, which would have risen from £60 to £120 after 21 days’ default, local councils will still have to resort to court action.

According to the Government, about 20,000 fines for unauthorised pupil absence go unpaid every year. The Government is intent on reducing the level of pupil truancy and provides statistical evidence to show that absence from class has a damaging impact on a pupil’s school attainment.

The concept of fining parents for not ensuring that their children attend school through “persistent absence” is not new and is defined as the missing of at least 15% of school time. In many cases, the child is truanting without the knowledge or approval of their parents but the state firmly places the burden on the parent to ensure the attendance of their children at school. This is a statutory duty which cannot be contracted out of.

But the situation where the pupil’s absence is with the knowledge or connivance of the parents, such as an arranged holiday during term-time, is proving more problematic for all concerned. While all parents can point to the increased cost of taking family holidays during school vacation time, some parents have much less room for manoeuvre regarding holiday dates, often due to their own working or personal commitments.

The Department for Education (DfE) stresses that missing even one week of school a year harms pupil education and highlights that the strict enforcement stance has lead to 200,000 fewer pupils regularly missing school. And this position leads to the recent case on the Isle of Wight in which a parent successfully resisted a £120 fine imposed because his seven-year-old daughter was absent from school due to an eight-day family holiday in Florida.

Although the decision of the magistrates’ court is not binding on any other court of local council, it does raise the technical point about the requirement of a parent to ensure regular school attendance of their children. If the pupil is not a habitual absentee or truant, can this test still be met?

In this instance, the pupil’s school attendance had been entirely regular prior to the holiday absence and assuming it was a one-off occurrence it did not indicate a pattern of non-attendance by the pupil with or without her parents’ consent. This issue is likely to re-surface in future court cases and may require further clarification.

Crime scene

The school premises can be viewed as a mirror of society generally and in any community anti-social and sometimes criminal behaviour is perpetrated.

Following a recent Freedom of Information request, it was revealed that 32,294 crimes were reported in schools, with the most common being theft and violence. Notwithstanding that some educational establishments maintain a permanent police presence on site, within primary, secondary and further education institutions some 13,003 thefts, burglaries or robberies were reported, 9,319 reports of violence and 4106 criminal damage or arson investigations.

A total of 1502 sex crimes were reported by 25 of the police authorities that provided data relating to sexual offences. While a proportion of the offences reported generally included individuals with no direct connection with the school but who happened to be on school premises, the data nevertheless shows that there are some dishonest or violent individuals among the staff and the pupil complement at any one time.

Vigilance is essential at all times in relation to valuable items of school or personal property and pupils must learn not to put temptation in the minds of others who might be ready to exploit their carelessness and immaturity. Although schools actively discourage pupils bringing into school sums of cash or valuable electronic items, learning to accept responsibility for one’s own possessions is an important life lesson.

Exposure to risk

The debate about the extent to which pupils should be exposed to physical risk by schools, whether during physical education (PE) lessons, school sport, classroom activities and school visits, continues to be had. This also spills over into the home environment where some parents are accused of being over-protective towards their children.

The threat of potential litigation has severely restricted the scope and frequency of many organised school trips and there has been much comment on the perceived dangers of certain sports, such as rugby, being followed at some schools. It is easy to reduce risk by completely avoiding activities which could be hazardous in certain situations and this is a simple option. But does it serve the pupils in preparing for everyday life?

This view has again been highlighted recently in an all party parliamentary report on childhood which heavily criticised parents, police and risk-averse councils.

The report intimates that play has become too safe and sanitised, and that children need to exposed to a healthy component of risk to help prepare them for later life. In particular, teachers should not “control” and “monitor” children in the playground “as doing so makes playtime a source of anxiety and distress”.

The report states that children should have a more free-wheeling approach to play and PE, thus enabling them to develop their own sense of risk, learning when fear can indicate unsafe behaviour, improve their physical skills and also reduce obesity.

As with all of these things, there has to be a compromise and schools have an over-riding duty to safeguard the physical and mental well-being of their pupils. The balance has to be struck between pupils learning to understand risk and likely harm and subjecting pupils to it first hand in a care-free and uncontrolled way. The non-supervision of pupils whether in the playground or elsewhere during school hours is not a tenable stance.

Online abuse and bullying

According to a recent OnePoll survey, almost a half of children have been bullied, with most of the abuse taking place in the school playground, during break times and in the classroom.

Twenty five per cent of victims said they were targeted because of their appearance and 13% said they were victimised because of their weight. Twenty five per cent had felt suicidal because of the bullying and half of the adults polled for the survey stated that they were still affected by childhood bullying.

A YouGov survey found that 20% of young people had experienced some form of online abuse, with girls in particular becoming victim, causing them great distress and undermining their confidence. It appears that teachers are also on the receiving end of online abuse, frequently by parents of their pupils.

The deteriorating parent behaviour, in which they have become more aggressive, was attributed to the availability of social media, such as Facebook. Parents thought nothing of sending hostile and abusive emails direct to teachers and felt safe in doing so through this non face-to-face method of communication. This could be one reason why an NUT survey found that more than half of teachers were considering leaving the profession over the next two years.