THE PRINCIPAL AND THE LAW

Transcription

1 THE PRINCIPAL AND THE LAW Peter O Rawe Chief Legal Adviser Solicitors December 2013 Solicitors 1

2 THE LEGAL RELATIONSHIP BETWEEN SCHOOL PRINCIPALS AND :- : Governors E.A Staff Principal Pupils Parents Solicitors 2

3 TERMS AND CONDITIONS OF EMPLOYMENT OF PRINCIPALS Prescribed by Schedule 1 of Teachers (Terms and Conditions of Employment) Regulations (N.I) 1987 The Regulations set out the Principal's general functions and professional duties Functions are also set out in statutory Scheme of Management Solicitors 3

4 1987 Regulations: General Functions of a Principal Principal must carry out professional duties in accordance with school s policy and objectives as determined by Employing Authority, and in a controlled school- the B.O.G, and shall obey the reasonable directions of E.A / B.O.G Subject to above, principal responsible for the internal organisation, management and control of a school. In carrying out duties the principal shall consult, where appropriate, with E.A, B.O.G, and staff. [See Terms and Conditions of Employment Regs.] Solicitors 4

5 1987 Regulations: Professional Duties of a Principal School aims Appointment of staff Management of staff Liaison with unions Curriculum Review Standards of teaching and learning Management information Performance review Development of staff Pupil progress Pastoral care Discipline Relations with parents Relations with BOG Relations with EA Accounting for Resources Premises Performance review Absence Teaching Daily break Solicitors 5

6 2. LEGAL ISSUES AFFECTING RELATIONSHIP WITH TEACHING AND OTHER STAFF RELEVANT AREAS INCLUDE:- APPOINTMENTS GRIEVANCE PROCEDURES DISCIPLINARY PROCEDURES MANAGING PERFORMANCE SICKNESS ABSENCE REDUNDANCY DISCRIMINATION (e.g. JOB SHARING / MATERNITY) STRESS AT WORK TEMPORARY CONTRACTS SALARY POLICY Solicitors 6

7 TIP! KNOW YOUR TNC CIRCULARS! ALL AVAILABLE ON DE WEBSITE SAME APPLIES TO NON TEACHING STAFF -JNC TERMS AND CONDITIONS ON STAFF COMMISSION WEBSITE Solicitors 7

8 Relevant TNC Circulars TNC 2009/7 - TEMPORARY VARIATION OF CONTRACT TNC 2009/4 JOB SHARE SCHEME FOR TEACHERS PROCEDURES FOR DEALING WITH PRINCIPALS, TEACHERS AND VICE PRINCIPALS WHOSE WORK IS UNSATISFACTORY OCTOBER 1997 TNC 2010/1 PROCEDURE FOR HANDLING TEACHER REDUNDANCIES TNC 2008/2 - TEACHER ATTENDANCE PROCEDURE TNC 2007/5 TEACHER DISCIPLINARY PROCEDURE TNC 2008/3 TEACHER GRIEVANCE PROCEDURE TNC 2009/5 CAREER BREAK SCHEME TNC 2009/11 BULLYING AND HARASSMENT PROCEDURE TNC 2011/4 - ANNEX TO BULLYING AND HARASSMENT PROCEDURE - BULLYING AND/OR HARASSMENT BY A THIRD PARTY OTHER THAN AN EMPLOYEE Solicitors 8

9 On-going Relevant Legal Issues Complying with redundancy obligations Temporary staff - Fixed term workers legislation Agency workers rights Job share requests Harassment / Bullying Statutory dismissal procedures LRA Code of practice on Grievances Duty to Refer / Independent Safeguarding Authority Appointing staff Solicitors 9

10 Staff Appointments Avoidance of Discrimination Types of Discrimination- Sex Religion / political opinion (NB teachers) Disability Race Sexual orientation Age NB Fixed Term / Part time employees Solicitors 10

11 Staff Appointments Tribunals will expects those involved in appointments to be aware of the provisions of the EOC and FEC Codes of Practice on recruitment and selection. NB Employing authority procedures AND to have put these provisions into practice!! Internal promotions? Solicitors 11

12 Importance of Interview Notes In order successfully to defend an Industrial Tribunal application, it is essential that members of the appointing panel are able to persuade the Tribunal that an appointment was made for good and proper reasons. Therefore record the assessments and decisions of shortlisting, interview and selection panels. Panels must also minute the post interview discussion which may involve making direct comparisons between the strengths and weaknesses of candidates or give specific reasons for selecting one candidate as opposed to another. Very often comments in notes may appear similar while there may be a wide divergence in marks. This is made much easier if the details of the post interview discussions are recorded and the reasons for selecting a particular candidate are clearly set out. Solicitors 12

13 Disciplinary Proceedings N.B. Importance of adhering to agreed Disciplinary Procedure. In case of assistant teachers the principal is the Disciplinary Authority at the Verbal and Written Warning stage. Principal has a key role in the investigation of alleged misconduct. TIP! LRA ADVICE ON CONDUCTING WORKPLACE INVESTIGATIONS - JANUARY Solicitors 13

14 Unsatisfactory Teachers N.B. TNC Procedure for dealing with Principals, Teachers and Vice Principals whose Work is Unsatisfactory Principal s role includes:- Identification Written report Arranging, if necessary, support programme and monitoring Involving other agencies Exceptional Circumstances Solicitors 14

15 Statutory Dismissal Procedures Since the Employment (NI) Order 2003 came into force in April 2005 employers have been obliged to adopt minimum statutory procedures for dealing with dismissal and disciplinary issues. The minimum procedures apply to all employees regardless of length of service Particularly relevant to the termination of contracts of employment of temporary staff (e.g. classroom assistants) including those employed on fixed term contracts. Solicitors 15

16 Statutory Dismissal Procedures (2) The statutory procedure applies where 'an employer contemplates dismissing or taking relevant disciplinary action against an employee'. It is automatically unfair to dismiss an employee without following the procedure, but the employee will need one year's service to bring an unfair dismissal claim of this nature - although one year not necessary if discrimination claim If this claim is successful, the industrial tribunal has the power to increase any compensation awarded by between 10 and 50% as a result of the employer's failure to follow the statutory procedure Solicitors 16

17 Statutory Dismissal Procedures The 3 Steps Step 1 The employer must set out in writing the employee s alleged conduct or characteristics, or other circumstances, which lead him/her to contemplate dismissing (or taking disciplinary action) against the employee. The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Solicitors 17

18 Statutory Dismissal Procedures The 3 Steps Step 2 The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension. The meeting must not take place unless the employer has informed the employee what the basis was for including in the statement under Step 1 the ground or grounds given in it; and the employee has had a reasonable opportunity to consider his or her response to that information. The employee must take all reasonable steps to attend the meeting. After the meeting, the employer must inform the employee of his/her decision and notify him/her of the right to appeal against the decision if he/she is not satisfied with it. Solicitors 18

19 Statutory Dismissal Procedures The 3 Steps Step 3 If the employee wishes to appeal, he/she must inform the employer. If the employee informs the employer of his/her wish to appeal, the employer must invite him/her to attend a further meeting. The employee must take all reasonable steps to attend the meeting. The appeal meeting need not take place before the dismissal or disciplinary action takes effect. After the appeal meeting, the employer must inform the employee of his/her final decision. Solicitors 19

20 Grievance Procedures TNC Agreed Grievance Procedure for Teachers (TNC 2008/3) The Statutory Grievance Procedure, outlined in Paragraph 8 of 2008/3, should be used for grievances which relate to statutory employment rights, for example, equal pay, discrimination on the grounds of age, disability, gender Under the statutory grievance Procedure employers and employees will have to: 1. Put the complaint in writing 2. Hold a meeting to discuss the problem 3. If employee not satisfied with the outcome of the meeting, hold an appeal meeting." Solicitors 20

21 Grievance Procedures TNC (2) For all other grievances, excluding salary issues, the Grievance Procedure outlined in Paragraphs 1-7 of 2008/3 apply. The School Salary Policy provides an appeals procedure for concerns arising out of the application of the School Salary Policy and the award of Teaching Allowances, permanent or temporary. Solicitors 21

22 Redundancy Main issues Redundancies may be considered where the School's budget share cannot sustain the actual costs of personnel presently employed, or where the skills of personnel presently employed do not match the school's projected requirements consultation with TUs will include the provision of information on: (a) the need for consideration of redundancy; (b) the proposed procedure and criteria by which decisions will be reached Issues surrounding voluntary redundancies e.g. curricular needs selection criteria should be objective, fair, consistent, precisely defined and capable of being applied in an independent way. Curricular audit Solicitors 22

23 TNC 2010/1 The following are potential areas for consideration when determining school needs and establishing justifiable criteria: Statutory requirement for curriculum delivery and teachers contribution to curriculum. Specialist roles undertaken in school which cannot be easily replaced. Total teaching experience in current school. LIFO - if, having applied the selection criteria based on the curricular and non curricular needs of the school, two or more teachers remain equal, LIFO may be applied Solicitors 23

24 Redundancy Main issues Individual consultation with staff members identified for redundancy Redeployment Transferred redundancy scheme Appeals Solicitors 24

25 Ill health - Take the Initiative! Employers should take the initiative when it comes to managing sickness absence. A detailed attendance policy, which is followed through to maintain regular contact with the employee during their absence and which clearly set out trigger dates for action is essential. An approach that promotes dialogue between the employer and employee, making it clear that the employer wants to try to get the employee back to work and giving support including, where appropriate, adjustments such as a phased return, will all help the employee to get back to work ELB SOLICITORS FEB

26 Ill Health Issues Schools must adhere to Managing Attendance in Schools policy Is the employee disabled for purposes of DDA? Reasonable adjustments? Different types of absence Short term / Persistent Intermittent/ Long term Ill health can provide grounds for the dismissal of an employee either because of a single extended absence or because of persistent intermittent absences. In either case, depending on the circumstances, there may come a point when the employer can dismiss fairly. Very important role of Principal in context of school s Pastoral Care Policy set out in the Managing Attendance in Schools policy Solicitors 26

27 Ill Health - Disability o The DDA defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person s ability to carry out normal day-to-day activities. Definition incorporate many common problems e.g. bad back/depression/stress. It will also cover illnesses such as HIV/Aids or cancer from the point of diagnosis. Key Issues Justification; Reasonable Adjustments including redeployment ELB SOLICITORS FEB

28 Ill Health Issues Role of Principal Ensure new staff informed of sickness absence procedures Monitor absence in fair, consistent and confidential manner / liaise with HR Maintain appropriate contact with staff Liaise with staff re arrangements for OH referral Carry out return to work interviews Ensure staff aware of Staff Care Service where appropriate Support any rehabilitation programme recommend by OH physician Be aware of the possibility that a disability is causing the employee s absence and be prepared to make reasonable adjustments and consider alternative employment. Solicitors 28

29 (2) LEGAL RELATIONSHIP WITH PUPILS AND PARENTS Relevant areas include:- The Duty of Care The Children (NI) Order 1995 / Child Protection Appropriate Physical Contact / restraint of pupils Delivery of the Curriculum Admissions Special Educational Needs / SENDO Bullying Health and Safety Pupil Records Detentions/ Suspensions/ Expulsions Solicitors 29

30 Parental Responsibility Parental responsibility is defined in the Children (NI) Order as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. In the context of education parental responsibility confers on a parent the right to express a preference for the school their child should attend and the responsibility to ensure regular attendance at school. Issues over surnames, access to school reports etc. Solicitors 30

31 PARENTAL RIGHTS UNDER CURRENT EDUCATION LEGISLATION be consulted during the statutory assessment and statementing process where a pupil has SEN; express preference in respect of school admission; request that a pupil be withdrawn from religious education and collective worship; receive pupil s annual report; appeal against an expulsion decision; be invited to meetings with teachers to discuss pupils progress; request that a pupil is not entered for an examination; receive regular communications from schools, for example advice leaflets, dates of holidays, school trips; give permission for school trips/after school activities/medical and dental examinations; receive copies of the school s curriculum and discipline policies; have access to the school s own records on the individual pupil Solicitors 31

32 Article 3 : Education (NI) Order 1998 The scheme of management for every grant-aided school shall provide for it to be the duty of the principal to determine measures (which may include the making of rules and provision for enforcing them) to be taken with a view to promoting, among pupils, self-discipline and proper regard for authority; encouraging good behaviour and respect for others on the part of pupils and, in particular, preventing all forms of bullying among pupils; securing that the standard of behaviour of pupils is acceptable; and otherwise regulating the conduct of pupils; before determining such measures, to consult the registered pupils at the school and the parents of those pupils Solicitors 32

33 Article 3 : Education (NI) Order 1998 The Principal shall prepare a written statement of disciplinary measures and secure that (i) a copy of that statement is given (free of charge) to the parents of all registered pupils at the school; and (ii) copies of the statement are available for inspection (at all reasonable times and free of charge) at the school. The scheme of management for every grant-aided school shall provide for the standard of behaviour which is to be regarded as acceptable at the school to be determined by the principal so far as it is not determined by the Board of Governors. Solicitors 33

34 Restraint (1) Article 4 of the Education (NI) Order 1998 allows teachers in certain circumstances to use such force as is reasonable in all the circumstances for the purpose of preventing pupil from (or continuing to) committing an offence causing personal injury or damage to property engaging in any behaviour prejudicial to the maintenance of good order and discipline. Applies on school premises and anywhere else provided member of staff has lawful control or charge of pupils concerned see DENI Circular 1999/9 Solicitors 34

35 Restraint (2) Reasonable force might be appropriate where pupils are fighting pupil about to commit deliberate damage or vandalism to property pupil running along corridor in way which might cause accident or injury Solicitors 35

36 Restraint (3) immediately after incident, matter should be reported orally to Principal and written report provided. The written report should include:- names of the pupils involved and location of incident names of all witnesses (staff or pupils) reason force was necessary how incident began and progressed steps taken to defuse situation degree of force used, how it was applied and for how long outcome of incident details of any injury suffered by pupil and others Solicitors 36

37 Detention Under Article 5 of the Education (NI) Order 1998 for a detention to be lawful: It must be part of the school s disciplinary measures and brought to attention of parents and pupils It must be imposed by Principal or someone authorised by him or her Parents must have 24 hours notice in writing It must be reasonable in all the circumstances i.e. proportionate in all the circumstances Regard must be had to any special circumstances including the pupil s age, SEN and whether suitable alternative travel arrangements can be made. Solicitors 37

38 School (Suspension and Expulsion of Pupils) Regulations (NI) 1995 Scheme for Suspension and Expulsion of Pupils must include provision for the following matters a) Pupil may be suspended only by the principal (or VP where Principal absent) b) Initial period of such suspension shall not exceed 5 school days c) A pupil may be suspended for not more than 45 school days in one year d) Where pupil has been suspended principal shall immediately a) Give written notification of the reasons for the suspension and the period of suspension to parent, ELB, chairman of Board of Governors and if appropriate, the local diocesan office of CCMS; and b) Invite the parent of the pupil to visit the school to discuss the suspension Solicitors 38

39 School (Suspension and Expulsion of Pupils) Regulations (NI) 1995 e) Principal shall not extend the suspension except with the prior approval of the Chairman of the Board of Governors and shall in every case give written notification of the reasons for extension and period of extension to parent, ELB, chairman of Board of Governors and if appropriate, the local diocesan office of CCMS f) Pupil may be expelled from school only after serving a period of suspension Solicitors 39

40 School (Suspension and Expulsion of Pupils) Regulations (NI) 1995 g) Pupil may be expelled from school only after consultation about his expulsion has taken place between the principal, parent, Chief Executive of the ELB or nominee, chairman of Board of Governors and if appropriate Director of CCMS or his nominee, provided that any neglect or refusal on the part of the parent to take part in such consultation shall not prevent a pupil being expelled h) Consultations in g) shall include consultations about the future provision of suitable education i) Where pupil expelled principal shall give written notification to parent of his right to appeal, the time limit set by the ELB and where the appeal may be lodged Solicitors 40

41 Suspensions and expulsions Precautionary Suspensions NB importance of adherence to procedures Supreme Court recently addresses precautionary suspensions in JR17(Education) Ct of Appeal had previously held that head teacher must have within his management powers the right to suspend a pupil as a precautionary measure pending investigation by statutory agency. However Supreme Court in London disagreed held no such power currently exists Solicitors 41

42 SCHOOL DISCIPLINE Expulsion should be used only in response to serious breaches of a school s discipline policy and only after a range of alternative strategies to resolve the pupil s disciplinary problems have been tried and proven to have failed; and where allowing the pupil to remain in school would be seriously detrimental to the education or welfare of other pupils and staff, or of the pupil himself or herself. Solicitors 42

43 SCHOOL DISCIPLINE There may be circumstances where it is appropriate to expel a child for a first or one off offence. These might include: serious actual or threatened violence against another pupil or a member of staff; sexual abuse or assault supplying an illegal drug carrying an offensive weapon Solicitors 43

44 SCHOOL DISCIPLINE You may wish to consider the following depending on the circumstances of the case :- Did the pupil commit the actions complained of? Appropriate standard of proof? If so, is suspension/expulsion an appropriate response under the school s Discipline Policy? severity of the offence and likelihood of repetition what support has been sought from other agencies? is expulsion a last resort? has the school has taken all reasonable steps to avoid expelling the child pupil s previous record in cases of cumulative bad behaviour? extent to which behaviour impairs or affects other pupils or staff whether pupil singled out unfairly for blame in group situation Solicitors 44

45 SENDO - Expulsions And Suspensions A school has two key obligations to make reasonable adjustments so that a disabled child is not put at a substantial disadvantage, and to ensure that no disabled pupil is treated less favourably than non disabled pupils without justification. Unlawful for a school to discriminate against a disabled pupil by suspending or expelling him or her for a reason relating to his or her disability Any justification must be material to the circumstances of the particular case and substantial Solicitors 45

46 Suspensions Suggested Guidelines For Principals 1. Be open to idea that behaviour may reflect a disability or SEN duty of reasonable adjustments 2. Make use of external resources in assessing this 3. If child repeatedly suspended refer to educational psychologists or behaviour support teams for advice 4. Use code of practice to assist any analysis 5. Accept that the law basically requires that express consideration is given as to how and why things are being done 6. Be ready to explain how decisions were reached Solicitors 46

47 Bullying Legislation requires that prevention of bullying be specifically addressed in school discipline policies Statutory duty on Principal to take measures to prevent all forms of bullying amongst pupils and to consult with pupils before determining such measures Increasingly an area for litigation duty of care / personal injury claims Human Rights dimension - ECHR Article 3 - prohibition of torture/inhuman/degrading treatment defined as behaviour unprovoked, intended to hurt and persisting over a period of time Cyber Bullying see e.g. DE Guidance - Acceptable Use Of The Internet And Digital Technologies In School (2007) Solicitors 47

48 Cyberbullying DFES Guidance Popularity of mobile, internet and wireless technologies have provided increasing opportunities for misuse through 'cyberbullying'. Definition Cyberbullying is an aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly over time against a victim who cannot easily defend him or herself Solicitors 48

49 What Can Schools Do? Schools should ensure that: bullying via mobile phone or the Internet is included in their mandatory anti-bullying policies, that these policies are regularly updated, and that teachers have sufficient knowledge to deal with cyberbullying in school the curriculum teaches pupils about the risks of new communications technologies, the consequences of their misuse, and how to use them safely all e-communications used on the school site or as part of school activities off-site are monitored clear policies are set about the use of mobile phones at school and at other times when young people are under the school's authority Solicitors 49

50 What Can Schools Do? Internet blocking technologies are continually updated and harmful sites blocked they work with pupils and parents to make sure new communications technologies are used safely, taking account of local national guidance and good practice security systems are in place to prevent images and information about pupils and staff being accessed improperly from outside school they work with police and other partners on managing cyberbullying. ensure parents are kept informed of the school standards and policies. Ensure that parents know about schools' rights to monitor their child's e- communications Source : DFES Don t Suffer in Silence Solicitors 50

51 WHAT SHOULD GO IN OUR ANTI- BULLYING POLICY ABOUT CYBER BULLYING? Definition of cyber-bullying Procedures to follow who to tell, how to record cyberbullying, sanctions Advice to pupils e.g. to be careful who they give their phone number and address to. If they receive an offensive or bullying message they should keep a record of the time and the date that it was sent Advice to teachers e.g. when pupils report bullying text messages/ s, they will be taken seriously Intervention techniques, curriculum support, training policy Link to school discipline policy sanctions Reference to off site bullying Solicitors 51

52 SPECIAL EDUCATIONAL NEEDS Role of schools in Stages 1,2 and 3 - School Based stages of Assessment and Provision Importance of record keeping Existence of Special Education Needs and Disability Tribunal - SENDIST Adherence to the Code of practice future litigation? Solicitors 52

53 SEN - The Role of the Principal The Principal should: take overall responsibility for implementing the SEN policy within the school; be informed of children's SEN and the arrangements that are being made to meet them; be involved with Governors in deciding staff and funding arrangements for SEN; advise and inform Governors on SEN issues; Solicitors 53

54 SEN - The Role of the Principal (2) Principal and SENCO need to be sure that: There is equality of opportunity for all children in the school (this may not always mean the same opportunities, but must mean opportunities of equal value and quality). There is an accessibility plan re disabled pupils. Suspension and expulsion procedures are followed correctly. The admissions policy does not discriminate against children with SEN and/or disability. The Code of Practice and Supplement are followed, with an effective system of identification and a staged response to meeting individual needs Statements of SEN are being adhered to. There is a school policy for children and young people with medical needs. Solicitors 54

55 DPA / FOIA - Good Practice Places more obligations on everyone who records and uses information relating to individuals and imposes considerable penalties for breaching those obligations All processing undertaken by schools must be fair and lawful, accurate and up to date. Data held must be must be adequate, relevant, not excessive and be held for no longer than is necessary. Solicitors 55

56 ICO s Top Tips to Schools on complying with The DPA: Notify. Not a top tip so much as a legal requirement. Schools handle personal data, and are obliged to notify the ICO of what they are doing with it. Be fair. A key principle of the Data Protection Act is that individuals should know what organisations are doing with their personal information, known as fair processing. This includes letting parents and pupils know why and where CCTV is being used, and taking care not to disclose personal info like photos online without consent. Solicitors 56

57 ICO Top Tips on DPA (Cont.) Keep it secure. It is essential that schools keep information secure. This means secure storage, secure usage, secure sharing and secure disposal. And if parts of a school s website are for staff or parents only, make sure there s proper password security in place and they can only access what they re entitled to. Prepare. Spend some time ensuring your school has clear and practical policies. Ensure that staff are trained in what they mean and don t forget to monitor whether the policy is being followed. Solicitors 57

58 Final Thoughts The doctrine of enlightened self preservation : importance of keeping own personal record of possibly contentious issues Adherence to school policies & supervision arrangements Rely on common sense- e.g. one to one situations If in doubt - shout HELP!!!!! Solicitors 58