Despite the continued focus on exclusions and exclusion-like activities, some very basic issues can get overlooked. Everyone is now clear that exclusion can only be on disciplinary grounds but is it equally clear that only the head teacher (“HT”) of a school can exclude a pupil and that if the exclusion is made by any other person it risks being challenged on the grounds that it is unlawful? Whilst this may sound easy to observe, the potential for schools to get this wrong is increasing.

In an era where HTs are more likely to work in more than one school (executive heads), work part-time or condensed hours, or where the job demands an increasing number of offsite meetings etc., the potential for misunderstanding who has the power to exclude at any given moment is greater than ever.

The DfE’s 2017 Statutory Guidance: Exclusions from maintained schools, academies and pupil referral units in England (“the Guidance”), explains further:

In a maintained school, ‘head teacher’ includes an acting head teacher by virtue of section 579(1) of the Education Act 1996. An acting head teacher [“AHT”] is someone appointed to carry out the functions of the head teacher in the head teacher’s absence or pending the appointment of a head teacher. This will not necessarily be the deputy head teacher [“DHT”]: it will depend who is appointed to the role of acting head teacher. In an Academy, ‘principal’ includes acting principal by virtue of regulation 21 of the school Discipline (Pupil Exclusion and Reviews) (England) Regulations 2012.” (Emphasis added)

Thus the Guidance clearly spells out that in the HT’s absence the DHT is not automatically the AHT for these purposes. Rather there must be someone “appointed” to the role of AHT. There must be some form of affirmative action rather than relying on the assumption that the role automatically defaults to the Deputy Head.

Where HT absences are short term the necessary “appointment” requirement could be documented by way of a scheme of delegation making it clear which post-holder (rather than a named individual) assumes the AHT role and under what circumstances, e.g. HT is off site for a specified period and cannot be contacted or will not return within a meaningful period of time. This should also be cross-referenced in the relevant job description and contract of the post-holder. Thus when the HT is absent in defined circumstances the appointment of an AHT is automatically triggered once it has been established that the circumstances apply and without any further action.

For longer term absences, for example where there is no HT in post or for long periods of foreseeable absence which may not be covered in the scheme of delegation, the school should look at a more formal appointment to cover the specific situation. Again this should be formally documented.

Schools would be well-advised to ensure that they are clear on how the position of Acting Head Teacher is appointed so as to avoid challenge, on the grounds of illegality, to any exclusion decisions made in the Head Teacher’s absence.