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

Restraint

Just how far can a teacher go when it comes to restraining a pupil who is either being aggressive or perceived to be threatening others? This perennial problem surfaced again in the recent case of Cox v the Governors of Bemrose School in which an experienced teacher who physically restrained a pupil by holding his arms to his sides and pushing him into a chair after the boy had hurled a milkshake at him and used abusive language towards him was dismissed from his post and subsequently lost his unfair dismissal claim. It was held that the teacher had used excessive force which went far beyond mere restraint judging by the CCTV classroom evidence available. The governors decided that the teacher had adopted a confrontational approach before the incident and had allowed his anger to govern his actions.

Although the teacher stated he acted in self-defence, once again this case illustrates that there is a fine line to be drawn between legitimate and necessary restraining actions by school staff and the use of excessive force in the heat of the moment. It is all a question of degree and staff must be mindful that when restraining a pupil their actions are very likely to come under scrutiny at a later date. Although the exact circumstances are always relevant, a teacher should only use such physical force as is necessary to achieve the particular type of restraint as is required.

That children are becoming more delinquent in their behaviour is indicated by a recent report which showed that of 209,000 young people detained by police in England and Wales in 2011, 2117 were under the age of 11. This amounts to an average of six primary school children being arrested every day.

In a particularly serious incident, a 15-year-old Scottish schoolboy has been sentenced to three and a half years in jail for killing a 14-year-old fellow pupil following a violent attack in the gym. The victim had accidentally hit the culprit on the side of the face with a sponge ball as they waited for their gym class to start. A charge of culpable homicide was admitted by the defendant who caused serious head injuries by punching the victim five times on the side of his head.

Aggressive and inappropriate conduct

Over-aggressive behaviour towards pupils by teachers is very likely to constitute gross professional misconduct and also result in a Teaching Agency hearing. Using racist and threatening language towards pupils, as well as throwing a piece of wood across the classroom, recently led to a High School design and technology teacher being banned from teaching for four years. Other bizarre and unsuitable conduct involved the teacher rubbing garlic on his hands and then wiping them on his pupils.

Online abuse

The problem of online abuse against teachers continues to grow as evidenced by two recent surveys. The NASUWT found that 42% of teachers had been on the receiving end of insulting comments, allegations of inappropriate behaviour with a pupil or other derogatory comments posted online. More than 1 in 10 teachers had actually been the victims of online abuse perpetrated by the parents of pupils. According to research conducted by Plymouth University, 26% of that cyberbullying was committed by the parents of pupils. The majority of cyber-attacks against teachers were launched on Facebook.

Hate campaigns such as these also constitute a criminal offence and those responsible have been cautioned where the police are able to trace the culprits through their social media activities. Teachers have been the majority of the 500 calls made to the Professionals Online Safety Helpline since it was launched last year.

Cheating at exams

Ofqual, the qualifications and exams regulator, continues to highlight the issue of cheating in exams at schools. Staff must resist the temptation to assist their pupils in ways that give them an unfair advantage and schools as institutions must avoid trying to bolster their own standings by failing to administer and supervise exams properly. Where there is evidence of cheating or collusion in exams, this can have serious implications for the pupils concerned, the staff involved and the schools as exam centres.

Ofqual has imposed 130 penalties on educational establishments this year with regard to GCSEs and A-levels, and 60 school or college staff were also found to have broken the rules. In relation to staff, this has resulted in suspension from involvement in future exams or assessment, followed by a written warning. Typically, the misdemeanours involved inappropriate assistance to candidates, coaching or prompting candidates, allowing students to open question papers early or permitting them extra time to complete their scripts at the end.

A total of 2550 penalties were issued to pupils for malpractice this year. The most common offence was taking unauthorised material or equipment into the exam room, such as a mobile phone. Plagiarism, such as copying from other candidates or failing to acknowledge sources was also a common offence. Resulting penalties imposed on pupils included 728 warnings, 1279 cases of marks being deducted and in 543 cases candidates were denied a certificate. Nevertheless, cheating by pupils only accounted for 0.02% of the total papers marked.

Another irregular practice by pupils was the writing offensive, obscene or inappropriate content in the exam paper, which led to 250 warnings being issued to candidates. There were 235 recorded instances of disruptive behaviour in exam rooms.

Vicarious liability

In the long-running litigation concerning alleged physical and sexual abuse at a former Catholic teaching institute, the Supreme Court recently ruled that the De La Salle Brotherhood had to share liability with the Middlesbrough diocese. Claims of abuse by 170 former pupils at St Williams, which provided residential care and education for boys aged between 10 and 16 with emotional and behavioural problems, resulted in an £8 million compensation bill, which now must be split between the diocese, which owned the school and the Brotherhood, which provided many of the members of staff. The diocese remains solely liable for any abuse committed by staff who were not De La Salle Brothers. The school itself closed in 1992 and the former principal was jailed for 14 years in 2004 for abusing boys in his care over a 20-year period.

Unfair dismissal

In Chartres v Watson t/a Trebinshun House ET/160408/10, it was held that a language school teacher had been unfairly dismissed for using a mobile phone during a lesson. The teacher had been distressed because her father was unwell and her mother had died a few months previously. It was alleged that she took a private phone call from her brother on her mobile phone during an afternoon lesson, although the teacher denied this.

The school failed to convince the tribunal that there was a rule regarding mobile phone use, which staff were aware of and there had also been a failure by management to investigate the incident properly and get clarification from the only eye witnesses. The teacher’s conduct had to be put in the context of her incredibly traumatic personal circumstances and no reasonable employer would have dismissed her for it. The tribunal also made no order for a reduction in compensation for contributory fault. Apart from the deficiencies in the internal investigation, this case also shows that if the employer wants to be able to safely dismiss an employee for a first offence, there should be a written rule covering the conduct in question and that the staff are made aware of such rule and the potential consequences of breaking it.

Last reviewed 16 April 2013