Date updated: Monday 29th April 2019

Funding Problem Creating Legal Issues

The pressure from funding shortfalls is beginning to persuade schools and trusts to explore ways of saving money. A recent survey suggested that two thirds of secondary schools had cut staff. In another, it emerged that there was an increase in the number of schools asking permission to sell playing fields to raise money. A union conference claimed that indirectly, performance related pay had effectively lowered teachers’ pay and that new teachers, depending on how hours were calculated, were being paid just above the minimum wage. In two areas, however, academies appear to have been testing out their legal powers: one is in pensions and the other is in developing their own pay and conditions document, rather than sticking to the Burgundy Book conditions which teachers will have transferred to academies with. These changes might include changing notice periods.

Sex and Relationships Education

The National Union of Head Teachers has reminded its members of their legal duty to teach children about same sex families in primary schools. This came as it was reported that a teaching assistant was dismissed for posting an attack on ‘brainwashing children’ about same sex relationships and as it was reported that a private school had material in its library that according to Ofsted promoted ‘hatred’ of gay people. Both Ofsted and the Secretary of State have so far placed themselves firmly behind the recently published document on SRE.

Parental Special Education Advice

A minister criticised firms of lawyers offering ‘No win No fee’ challenges to councils over SEN provision. He pointed out that the Parental Special Education Advice service is provided free of charge to offer support to parents in exactly those circumstances.

Referrals Increase

The report that the numbers of  primary age pupils sent to referral units had doubled since 2011 coincided with the report that a possible 50,000 students had moved off secondary school rolls. It overlapped a report by the NAS/UWT that 24% of a sample of teachers surveyed claimed to face violence once a week. This is broadly in line with similar figures from Scotland and Northern Ireland and from the GMB union’s survey of their teaching assistant members in the autumn. While the surveys may exaggerate the problem, schools as employers have a duty to provide a safe working environment for their staff. Health and safety legislation extends beyond building sites. 

Guidance

The government has published its annual guidance on school capital funding and guidance on complaints procedures.

Cases

Pupils will already be being warned about the legal dangers of sexting. What they may not be aware of is that in R (CL) v Chief Constable of Greater Manchester & Secretary of State for the Home Department the Divisional Court has held that the retention by the police of crime reports which related to sexting incidents in which a schoolboy had allegedly been involved did not breach his rights under Article 8 ECHR.

The decision confirmed that the retention of data by the police in accordance with the prevailing regulatory and statutory data protection framework and relevant guidance was in accordance with the law whether the alleged offender was an adult or a child.

Discrimination Against Head Teacher

In the Governing Body of Tywyn Primary School v Mr M Aplin’ the Employment Appeal Tribunal found that a gay head teacher,  who had been dismissed after having sex with two 17 year-olds whom he contacted on the Grindr app, was discriminated against. The key issue was that ‘the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and the Employment Tribunal therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation.’ The failures referred to were the failure of the Investigating Officer to observe a proper objectivity in his proceedings. This is an all too common failure and if an investigator is appointed from within a school it is important that terms of reference and training are such that these mistakes are not made.

Head Teacher’s Failure

A disciplinary panel has barred a former head teacher from teaching for a minimum of 5 years as a result of his failure to act on safeguarding referrals from staff. The panel found that there was a direct connection between these failures and the child’s death and that the safeguarding failures were systemic and in place for a significant period of time. 10 individual safeguarding referrals were made by staff but were never passed on to the relevant authorities.

And Finally

Union Action

The National Education Union Conference voted for strike action in pursuit of a 5% pay claim and to support members in schools which "impose teacher-led instruction" and curtail its members' professional freedom to use a range of teaching styles. It will also ballot for a SATs ban.

It is important to note that a vote at a conference is not sufficient to secure immunity from strike action in a public service.

It also voted to make awareness of breast ironing to be taught in schools as part of compulsory, age-appropriate relationships and sex education (RSE) classes and that lessons about LGBT+ relationships should be made compulsory in all schools at stages of the curriculum from infants upwards.

Saving Money

The DfE is rolling out its £2.3 million advice scheme to help schools save money. There was some concern when suggestions that emerged from 20 schools advised by the team claimed variously that the schools concerned had been told to avoid food waste by reviewing portion sizes; to teach classes three at a time in the dining hall; and replace teachers with support staff on limited contracts. That fundraising activities should split the proceeds between school and charity was another suggestion.

It is easy to see how these suggestions might make sense in some ways and that they may well have been chosen for publication for their sensational possibilities. Publication of the full advice and its results for the schools concerned are promised by the DfE in a full report on the scheme.