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Next edition of FIS

The next issue of Funding for Independent Schools will be mailed out to bursars and heads in January 2012. It contains the latest strategic and financial news for bursars, heads and governors.

Contact Andrew Maiden on 01926 339661 for more information.

Legal update in association with

Public benefit ruling - the practical implications

The long awaited Upper Tribunal ruling on the Independent Schools Council's challenge to the Charity Commission's public benefit guidance has recently been released. While there has been a significant amount of opinion and comment on the Tribunal's interpretation of the law, schools will want to focus on the practical implications of the latest development in this area.

An important starting point is the Tribunal's confirmation that "poor", in the context of public benefit, does not mean destitution. In legal terms, it means not being able to afford the full fees charged by a school. It follows that families with what many might consider to be a reasonable level of income may fall within the category of "poor". Equally, a family is "rich" where it can afford full fees.

The key points for schools' governors and senior management teams:
It is down to the governors of each school (and not the Charity Commission or the Courts) to make judgements about how best they can meet the public benefit requirement imposed by charity law.

Governors must make some provision for the "poor" to benefit from their school which is more than merely tokenistic or at a de minimis level. The Tribunal moved away from the Commission's preferred approach of assessing the "opportunities to benefit" provided by a school to assessing the actual provision for the poor provided by the school.

Providing bursaries will still be the main way in which schools can meet the public benefit requirement, but scholarships, hardship funds and certain sources of third party funding can count too.

Sponsoring an academy will count significantly towards the public benefit requirement, but other forms of "indirect" benefit will only count if they are provided alongside "direct" benefits such as bursaries.

Where a school is providing its facilities to other schools and the wider community, the use made of them must be linked to the school's charitable educational objects if it is to count towards public benefit.

The Commission will obviously need to re-write its guidance, but it is not yet clear how it will approach this. In the interim, schools should keep public benefit on the agenda, particularly the kind of direct benefits (bursaries and scholarships) that both the Commission and the Tribunal consider (to a greater or lesser extent) are important in demonstrating public benefit.

One of the central features of the ruling is that the Tribunal has firmly stated it is for governors of a school (not the Charity Commission or the Court) to decide what is adequate provision for the poor in their school and that there is no test of reasonableness imposed on governors when deciding what provision to make available. It is down to the governors, in the proper exercise of their powers and discretion, to decide what provision can be made by their school. This allows governors to take into account the size of their school, its financial position and its pupil demographics (both actual and potential), rather than attempting to comply with levels of provision accepted by the Commission as adequate in previous cases.

In order to properly carry out their duties, the Tribunal ruled that governors must make some provision for the poor to benefit from their school and that this provision must be more than merely tokenistic or at a de minimis level. The Tribunal moved away from the Commission's preferred approach of assessing the "opportunities to benefit" provided by a school to assessing the actual provision for the poor provided by the school.

The Tribunal did however emphasise that the governors of schools which provide "luxury facilities" are under a stronger obligation to demonstrate their public benefit (but, importantly, do not have to provide a greater level of public benefit than schools which do not "gold plate" their facilities). Specialist schools (such as music schools) are likely to have to provide a lower level of public benefit because they are already meeting a specialist need for the general public.

The Tribunal stated that any decision on setting fees must be "rational and justified", so it will be important to ensure that decisions by governors are properly minuted, with supporting evidence for the fee levels charged.

The argument that independent schools provide a public benefit by relieving the state of the cost of educating their pupils was dismissed as "highly speculative and not established".

Scholarships: under the Commission's guidance, less emphasis was placed on scholarships because they are merit-based and not means-tested. The apparent logic was that the "opportunity to benefit" was less because any benefit to the poor would more likely be by chance rather than by design.

The Tribunal has said that scholarships can provide adequate provision for the poor. The ruling states that awarding full scholarships to 10% or more of entrants is sufficient and the actual limit is likely to fall between 1% and 10%. However, it will be important to examine the actual take-up of scholarships. If the recipients of scholarships were in practice all able to afford the fees anyway, then the public benefit actually provided will be insufficient.

Schools should also note that the Tribunal was asked to consider the question of scholarships based on a percentage of the number of entrants each year and had to assume a theoretical annual intake of 70 pupils.

Hardship funds: prior to the ruling, the Commission's guidance was that hardship funds (the remission of fees for pupils already in the school whose families can no longer afford full fees) did count for public benefit purposes but only to a limited extent. The apparent logic was that public benefit was better served by providing opportunities to benefit to pupils from outside the school who could not afford the fees rather than alleviating full fee-paying pupils whose families had fallen on hard times.

The Tribunal has confirmed that a poor pupil is poor regardless of whether or not they are currently attending the school or applying for a place. The move towards focusing on actual provision for the poor rather than "opportunities to benefit" means that means-tested hardship funds will contribute to public benefit to the same extent as bursaries for new entrants.

Bursaries: the Tribunal confirmed that means-tested bursaries are one of the main ways in which governors should be considering providing sufficient public benefit to the poor. The move in the sector towards bursaries in response to the Commission's guidance has therefore been sensible and it remains important that governors ensure that bursaries are well-advertised, sufficiently funded and fairly assessed.

Quite what the level of bursary provision should be remains unclear. The Tribunal ruled that the level is likely to be between 1 per cent and 10 per cent of a school's pupils being in receipt of bursary provision, but the actual level will vary from school to school. A level of between 1 per cent and 10 per cent assumes full fee remission, but the Tribunal accepted that even a 75 per cent bursary may be sufficient to allow a poor pupil to attend a school. As the level of fee remission decreases, so too does the ability of the award to allow a pupil who is poor to attend the school.

The Tribunal confirmed that bursaries provide more public benefit than scholarships and therefore the level of bursaries needing to be offered in order to meet the test can be lower than the level of scholarships.

Third party funding: the Tribunal has also provided greater latitude for pupils funded by third parties (whether by a charity connected to the school such as an endowment trust or by external agencies). Under the Commission's guidance, the extent to which a school could take account of pupils funded by third parties depended on the availability of the funding, who could apply for it, the publicity provided for it etc. This caused a particular problem for the CEA which is, by its nature, only open to members of the Armed Forces.

The Tribunal said that "a poor person in receipt of a grant is nonetheless poor" and therefore the source of the funding is largely irrelevant (there is an important exception where funding is provided by an employer as a private benefit to the parent). This means that third-party funding targeted at a specific group should now contribute to a greater extent to a school's provision for the poor. But the CEA still does not count for the purposes of public benefit, because in the Tribunal's view it is a "private benefit" available to Armed Forces parents and forms part of their means.

Indirect benefits: the Tribunal's ruling addresses indirect benefits such as providing facilities to state schools and the wider community, sponsoring academies and making exam papers available online.

The clearest example of an indirect benefit that would, on its own, meet the public benefit requirement is "considerable" sponsorship of an academy. What constitutes "considerable" will vary from school to school and will depend on its turnover, level of surplus, the expected duration of the sponsorship etc. The Tribunal also ruled that providing only indirect benefits (except for academy sponsorship) with no direct benefits such as scholarships or bursaries would not meet the public benefit requirement. However, when taken together with direct benefits, indirect benefits of this kind may be sufficient to provide sufficient provision for the poor.

The provision of facilities to third parties needs careful thought. For a school which is established to advance the education of boys and girls, merely making a school's facilities available to the general public is not sufficient as it does not help meet the school's charitable purposes. There must be a sufficient element of education provided through third party use (for example, by local state schools or by educational groups) in order for this type of benefit to count.

What next?
The Tribunal is still in the process of determining whether or not to quash all of the Commission's guidance or only parts of it. The Commission had suggested that it would voluntarily withdraw the parts of the guidance that are wrong, but the indications are that the Tribunal does not view this as sufficient and will order that the guidance (or parts of it) are quashed. There is no indication that the ISC or the Commission will appeal the ruling.

Subject to this, the Charity Commission will obviously need to re-write their guidance on public benefit. Quite how they will interpret the Tribunal's decision remains to be seen. In the interim, schools should keep public benefit on the agenda, particularly the kind of direct benefits (bursaries and scholarships) that both the Commission and the Tribunal consider (to a greater or lesser extent) are important in demonstrating public benefit. Sponsoring academy clearly chimes with the policy of the Government, but many schools will also want to look carefully at the indirect benefits they provide to the community to make sure that they can count for public benefit.

For further information, contact Barney Northover on 0117 314 5395.

CRB disclosures and the "three month rule"

The ''three month rule'' for Criminal Records Bureau (CRB) checks is set out in the Education (Independent School Standards) (England) Regulations 2010 (the ISS Regulations). The ISS Regulations state that schools do not need to obtain a CRB disclosure for newly recruited staff if they have worked in a school or further education college in the three months before they start work at the school.

Many schools have a best practice policy of undertaking a CRB check for every new recruit, regardless of whether the ''three month rule'' applies. We strongly advise this approach. Due to the sometimes lengthy delay in receiving the CRB disclosure, schools often sensibly apply for it well in advance of the forthcoming academic year. However, if the check is done speedily the date the disclosure is received by the school can be before 1 June, making it more than three months old by the date employment starts in September.

In their April 2011 Schools Update, ISI state that if schools take advantage of the ''three month rule'' a CRB check does not need to be carried out. This is correct. ISI go on to say that if a check is carried out it must be no more than three months old by the time employment starts. However, the ISS Regulations only state that the CRB check must be obtained before, or as soon as practicable after, employment commences.

The date on which a school should obtain a new CRB disclosure is not specified. Therefore, while a CRB disclosure should ideally be obtained as close to the start date as possible, we do not consider it a regulatory failure if the CRB disclosure you have obtained is more than three months old at the date employment commences.

For more information, contact Richard Hewitt on 0117 314 5320.

School's refusal to let pupil wear cornrow braids ruled racial discrimination

In the first case of its kind heard under the Equality Act 2010, the High Court has ruled that a school's ban on unconventional hairstyles is unlawful indirect racial discrimination which cannot be justified, which will affect the way schools implement a number of their standard policies and procedures.

In this case, the male Afro-Carribean pupil and his mother challenged a refusal by a school to allow him into the school with his braids. Since birth he had not cut his hair and kept it in cornrows in accordance with his family tradition.

It was ruled that such policies on appearance are not in themselves unlawful; indeed it was accepted that "a rigid appearance policy at a school is clearly entirely reasonable provided it complies with equality law". It is when such policies are applied without any possibility of exceptions that they are unlawful.

The High Court judge recognised that not all people of Afro-Caribbean ethnicity regard the wearing of cornrows as part of their culture and ethnicity.

Nevertheless, it was determined that there is such a group, and this group would be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows.

It was accepted that cultural and family and social conditions are often part of what brings a person of a particular ethnicity with the scope of the Equality Act, regardless of whether all of those of that particular ethnicity have the same traditions and beliefs.

This is the first case that has clearly demonstrated that non-religious cultural and family practices associated with a particular race can fall within the protection of equalities legislation.

While schools may have in place strict policies on appearance and behaviour, they must ensure that such policies and procedures are operated within the law. Schools must ensure that in implementing such policies, they are sensitive to the fact that if a policy creates a 'disadvantage' to a particular group, it may be viewed as discriminatory.

For more information, contact Yvonne Spencer on 0117 314 5202 or Tracey Eldridge-Hinmers on 020 7665 0802.

Regime change for CRB and Vetting and Barring scheme

On 11 February the government published two reports setting out recommendations for major changes to the Vetting and Barring Scheme (VBS) and the Criminal Records Bureau (CRB). Sweeping reforms are expected to be implemented in 2012. The government aims to:

reduce bureaucracy; and
ensuring adequate protection for vulnerable groups

In due course, the Independent Safeguarding Authority (ISA) which administers the Adults' Barred List and the Children's Barred List will be merged with the CRB. In the meantime, the requirements for schools to implement "safer recruitment" measures, including enhanced CRB checks for all new entrants to the education workforce remain.

Further reports, legislation and guidance are expected but some of the proposed changes are contained in the Protection of Freedoms Bill including:

abolition of the requirement for people working with children or vulnerable adults to register with the Independent Safeguarding Authority (ISA) and become subject to monitoring;
restriction of the definition of "regulated activity" so that fewer people will be barred from working with children or vulnerable adults. Surprisingly it is suggested in the report on the VBS that someone who is barred from teaching in a school might not be barred from becoming a "Sunday School helper" or "volunteer touchline judge at a children's football match". The reasoning is that such roles would be "supervised" thus reducing risk to children. Although an employer in these circumstances would still be able to carry out a CRB check, there would be no obligation to do so
in fact any voluntary work in a school will no longer be regulated activity provided that it is supervised. Schools should therefore ensure that their supervision arrangements are robust and that they operate rigorous risk assessments in relation to volunteers;
only those who are currently working with children (or "might do so in the future") will be automatically barred following conviction for a serious offence. Thus a supermarket worker convicted of a serious offence against a child would be free to apply for either a role involving regulated activity or a supervised role as above. This highlights the importance of CRB checks and other forms of vetting such as references;
allowing employers to apply for an updating service (for a fee) paving the way for CRB certificates to become "portable";
in future, CRB certificates will be sent only to the individuals concerned who will then be able to challenge any inaccurate information before deciding whether to pass it on to the employer. If the certificate is not passed on then the employer can decide not to confirm the employment offer but the applicant's privacy will have been preserved.

Please click here for details of our safer recruitment training programme for schools.

For more information contact Yvonne Spencer on 0117 314 5202.

Overseas parents

According to the 2010 consensus published by the ISC there are currently 23,307 non-British pupils in UK independent schools whose parents live overseas (an increase of over 15,000 pupils since 2005).

Many schools will be aware that most fees recovery schemes do not cover claims against debtors resident outside England and Wales and pursuing an increasing number of such debts can be time consuming and expensive.

Usually, the School's contract will state that it is to be governed by English law, regardless of where the parents reside, giving Schools the option to pursue the debt through the English courts. However, without such a clause schools cannot always do so, and in any event they may wish to consider pursuing the debt abroad.

If schools can pursue the debt either in England or the debtor's country of residence, we would recommend that you consider both options carefully before deciding on jurisdiction. Whilst proceeding here will generally allow the School more control, the English litigation system is expensive and any judgment obtained here will have to be registered and enforced abroad, so proceeding in this country may also end up taking longer.

With this in mind, schools often choose to instruct a solicitor in the debtor's country of residence from the outset, either direct or through us. As a founding member of the Association of European Lawyers (AEL), we have ready access to top lawyers throughout Europe and also have a network of contacts in other jurisdictions.

We can advise on jurisdictional issues at any time, but now offer a bespoke service reviewing your contractual documents, advising as to your jurisdiction options and locating a solicitor in the country of the debtor's residence for a discounted fixed fee of £150 plus VAT.

For more information contact Tabitha Cave on 0117 314 5381.

Continuity of service is preserved over school holidays

We are often asked to advise clients on whether school holidays can, in certain circumstances, break continuity of service. The Employment Appeal Tribunal in Hussain v Acorn Independent College, faced with similar circumstances, confirms our view on this issue.

Acorn College employed Mr H as a teacher on 26 April 2008, to cover for a teacher on sick leave. This contract came to an end on 8 July 2008. Coincidentally, however, the teacher Mr H was covering also resigned on 8 July 2008. As a result Mr H agreed to start teaching permanently at the college after the summer holidays, on 5 September 2008. Mr H was subsequently dismissed on 12 June 2009, and claimed unfair dismissal.

The college argued that Mr H's employment began on 5 September 2008, and that he therefore did not have the necessary one year's continuous service to claim for unfair dismissal. However, on appeal the Tribunal held that Mr Hussain did have sufficient service, as his employment had began in April 2008.

The Appeal Tribunal held that Mr H's first contract had simply come to an end because the summer holidays meant the demand for him to work had temporarily ceased. However it had been agreed that Mr H would be doing the same work in September 2008, when the requirement for work resumed. As the two contracts were in sequence, and the gap between them merely short and temporary, Mr H's continuity of service had not been broken. He was therefore eligible to claim for unfair dismissal.

This case makes clear that a temporary cessation of work caused by, for example, the school holidays, does not necessarily break an employee's continuity of service. This is particularly relevant for staff employed on either successive short fixed term contracts or, as the case illustrates, offered a permanent position having, immediately prior to that offer, covered a period of leave.

For further information, contact Naseem Nabi on 0117 314 5630.

The separation of parents and fees recovery

The sensitive and emotional nature of a separation makes it easy to ignore the practical impact which the breakdown of parents’ relationships may have on the payment of school fees.

Where both parents of a pupil have signed the contract, they will generally be jointly and severally liable for outstanding and future fees. As such, the school must ensure that it does nothing to prejudice its position and understand the issues that could arise when parents separate.

The concept of joint and several liability
When litigation is commenced to recover outstanding fees, many parents claim not to have understood that by signing the school contract, the school is entitled to payment in full from either signatory.

Where parents have separated, it is important to ensure that both parents understand their obligations under the school contract, particularly where both parents are signatories but only one parent is or has been paying fees.
A robust credit control policy can assist schools with making sure that the parents know precisely what is expected of them.

Who will pay the school fees?
In some cases, school fees will be the subject of court orders in matrimonial proceedings between the parents. Such orders are binding as between the parents only and do not affect the school's contractual entitlement to recover fees from either parent on the basis of their joint and several liability.

That said, it is important that the school does not compromise its position by agreeing to change how the parents are invoiced to accommodate a court order, as this could later adversely affect the school's chances of recovering fees against both parents.

Schools should ensure that they continue to issue invoices to both parents. Who pays what proportion is then a private matter between the parents.

Withdrawal by one parent
It is often the case that following separation, one parent will attempt unilaterally to give notice of their withdrawal from the contract. Schools should consider whether their terms and conditions deal with this issue or whether they wish to require the agreement of both parents to the release of one of them from her/his contractual obligations. Any ambiguity could impact on the school's ability to successfully recover unpaid fees.

While it is important that the school has robust terms and conditions, policies and procedures in place, it is equally important that lines of communication are open with both parents at an early stage following a separation to reduce the risk of arrears accruing and to maximise its prospects of recovery.

For further information, contact Tabitha Cave on 0117 314 5381.

Immigration: Tier 4 consultation

The Government has announced a number of changes to the immigration rules which will further restrict schools from recruiting staff and students from overseas. At this stage, the Government has only announced headline changes which will come into force next April, and has launched a consultation on the student immigration system. Further details will be revealed in due course. However students and schools are advised to take advantage of the existing provisions before the grip tightens.

Changes to student visas
The plans to restrict those coming to the UK to study, and those staying here after studying, has caused widespread concern in the education sector. As well as concerns over students being prevented from gaining visas to study in the UK, there is fear that the restrictions will damage the UK's international reputation for excellence in education and that students will feel unwelcome and choose not to study here.

The consultation
A public consultation entitled The student Immigration System was launched by the UKBA in December which clarifies the Government's proposals for Tier 4 and Tier 1 - Post Study Workers (PSW). The consultation closes at midnight, 31 January 2012.

The proposals focus on restricting entry (for Tier 4 General Students) to only those studying at degree level, but with some flexibility for Highly Trusted Sponsors (HTS) to offer courses at a lower level. This is relatively good news for education institutions that have HTS status, as it is proposed that this level of license will enable you to continue to offer courses below degree level to international students. This will only affect schools that offer A levels to international students over 18. Of concern, however, is the proposal that students must return home to apply for a visa extension. This could be very disruptive for both the student and the education institution.

Independent schools
There is good news for independent schools. The consultation states: “We propose no tightening of the Tier 4 (Child) route; this is a relatively small part of the Tier 4 composition and one which poses us least risk” and makes it clear that independent schools are distinguished from other education providers. A proposal that would have a positive impact on independent schools is to allow 'lower risk' students to self-declare maintenance and qualifications requirements.

For further information, contact Claire Wilkins on 0117 314 5274.

New Standards for independent schools: day and boarding

The Department for Education (DfE) has had a busy summer. Revised National Minimum Standards for Boarding Schools (NMS) were published on teachernet.com on 13 July 2010. In mid-August the new regulations governing standards for all independent schools were published. This development applies to inspections taking place from 1 September 2010.

The good news is that most of the changes are designed to streamline and clarify the existing requirements rather than introduce radical changes. The idea appears to be to bring the requirements for boarding schools into line with those for day schools and to align the rules for independent schools with those for maintained schools.

Significant amendments to the NMS include changes to:
• recruitment and vetting checks, including CRB checks. In short, the revised standards place boarding schools in the same position as day schools in relation to paid staff;
• safeguarding, in particular the need to protect boarders from potential harm deriving from their use of the internet, mobile phones and other electronic and digital technology or systems;
• complaints procedures for boarders and their parents; and
• administration of medication.

The new regulations (Education (Independent School Standards) (England) Regulations 2010) consolidate and replace the 2003 regulations. Changes include:
• requirement for independent schools to "have regard to" guidance issued by the Secretary of State when making arrangements to safeguard and promote the welfare of pupils. It is difficult to envisage circumstances when departure from guidance will be acceptable;
• amendments to pre-recruitment checks for boarding staff;
• amendments to the pre-recruitment checks for volunteers; and
• there is a new definition of "boarder" which includes a pupil for whom the school provides accommodation, whether or not the pupil is a pupil at that school. This is intended to catch pupils aged 18 or over who would not normally come within the definition of "child" for safeguarding purposes. It will also have consequences for pupils on exchange visits.

Schools intending to revise their policies should note that developments are in hand. The government is currently reviewing the Vetting and Barring Scheme, which will amend the final content of the revised Safeguarding and Safer Recruitment in Education guidance. The changes may require adjustments to a number of policies.

For further information, contact Yvonne Spencer on 0117 314 5202 or Christine Betts on 0117 314 5279.

Fire protection

The recent prosecution of the governing body of St Joseph's Catholic Primary School highlights the risks to schools of failing to comply with their duties under The Regulatory Reform (Fire Safety) Order 2005. In St Josephs' case the governing body pleaded guilty to charges of:
• failing to take general fire precautions;
• failing to implement the findings of their fire risk assessment; and
• failing to appoint fire wardens.

In this case there was no fire and no-one was injured. The governors were still fined £2,250 and ordered to pay costs of £5,570.

It is essential that schools prioritise fire safety: not only is it one of the first issues ISI or Ofsted inspectors will wish to investigate, but if schools fail to comply with their obligations they face expensive prosecution and reputational damage even if there are no fires.

In the event of a fire, schools face the potentially devastating consequences and are also likely to face criminal prosecution of the school and/or senior managers. Although prosecutions are rare, it is worth noting that serious breaches carry an unlimited fine or a term of imprisonment of up to two years. Furthermore, non-compliance also brings with it the inevitable risk of failing an inspection.

Demonstrating compliance
It is important to ensure that you have the correct policies and procedures in place but also to be able to demonstrate fire safety compliance through appropriate record keeping of measures such as:
• undertaking adequate fire risk assessment(s);
• considering procedures in the event of fire and having a clear evacuation policy;
• providing fire safety information to staff, pupils and others on the school site;
• checking that fire procedures and arrangements are understood by the use of fire drills;
• appointing fire wardens and providing appropriate fire training for staff;
• ensuring that you have suitable systems in place for the maintenance of clear emergency routes and exits, emergency signs, notices, lighting, fire detectors, alarms and extinguishers;
• undertaking regular audits of the premises and testing of equipment; and
• having a clear critical incident policy.

For more information, contact Tabitha Cave on 0117 3145381 or Natalie Andrews on 0117 3145433.

Vetting & Barring update

Employers and staff working or about to start working with children and vulnerable adults have been preparing for the implementation of the Vetting and Barring Scheme. This is due to start next month with voluntary registration for new starters, followed by mandatory registration for new entrants to the vulnerable groups workforce in November 2010. However, an announcement from the Coalition Government has raised doubts about the timetable for the new scheme and about its eventual scope.

The government has stated: "We will review the criminal records and vetting and barring regime and scale it back to common sense levels."

The Independent Safeguarding Authority (ISA) which is responsible for administering the scheme has issued the following Q & A statements in response:
Q:Will this review delay the start of the voluntary ISA registration, previously announced for 26th July 2010?
A: This Government wants to take a measured approach. Minsters have yet to finalise the scope of the review and full details will be provided in due course.

Q: What would be "common-sense levels " for people working with children ?
A: The Scheme was designed as a specific response to the Bichard enquiry which called for new checks to be brought in for people who work or volunteer with vulnerable groups. Any review will need to ensure that vulnerable groups continue to be properly protected, but in a way that is proportionate and sensible, and does not infringe on civil liberties.

School employers are not yet required to ensure registration of staff in time for September 2010. However, there are a range of other issues affected by the Safeguarding Vulnerable Groups Act which already impact on schools (for example, referral to the ISA of staff dismissed for safeguarding reasons) and these should not be affected for the time being.

For more information, contact Christine Betts on 0117 314 5279 or Yvonne Spencer on 0117 314 5202.

Clear rules provide behavioural boundaries for staff

The Employment Appeals Tribunal (EAT) have supported a special school's decision to dismiss an Administration Assistant (F) for gross misconduct, which took into account a similar previous incident. A clear code of conduct could have prevented a challenge as far as the EAT from arising in the first place.

The case is London Borough of Brent v Fuller. In May 2007 F saw a child being restrained by specially trained staff. The child was screaming and complaining about being restrained. In front of the child, F said that she could not bear the screaming anymore and that the staff members should leave him alone and 'have mercy on him'. The Head immediately made clear that she was not to interfere with discipline and the application of behavioural restraint. Nothing further was said about the incident.

A more serious incident occurred later that year. A child, a self-proclaimed "screamer", had run out of his classroom injuring his teacher and was being restrained by the Head and another trained member of staff because he was kicking. Three other trained members of staff were also present. F approached the group, complaining about the child's screaming.

F made a number of allegations in front of the child, including that they: were hurting the child; were ganging up; did not care; and were restraining him in a sexual way.

F did not leave when told to do so by the head and ultimately had to be led away by the head. As a result of the confusion that F had caused, the boy lashed out again, injuring another member of staff before swearing at and kicking the head.

F was dismissed for gross misconduct because: she had failed to follow reasonable instructions; had repeatedly and inappropriately intervened in behaviour management issues; had endangered the child and others by encouraging him; and had made inappropriate comments to the member of staff restraining him.

The decision to dismiss was taken in light of the event in May and F's failure to follow the Head's instruction that she was not to interfere with discipline and the application of behavioural restraint. On the facts, the decision seems fully justifiable, but the school was hampered by the fact that nothing was put in writing regarding the May 2007 incident.
The EAT's decision was that that in similar situations all relevant background information to an incident can be considered when deciding whether to dismiss. This is a sensible decision.

As stated, had the school had an appropriate code of conduct in place it would have dramatically reduced the risk of having to defend expensive tribunal proceedings. A written code of conduct highlights to staff what is expected of them, setting out clear rules, boundaries and the standards that the school requires.

For more information, contact Karl Deakin on 0117 314 5443.

£4.3 million outcome heralds new era of high claims by employees

The Court of Appeal's decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust is likely to result in a substantial increase in claims for compensation payments from dismissed employees where contractual dismissal, disciplinary and capability procedures are not followed correctly.

It is advisable not to have contractual dismissal, disciplinary and capability procedures in anticipation of a decision like this. Employment contracts should only make reference to these procedures, which should be in non-contractual Employment Manuals. Flexibility and uniformity are the added benefits of this approach. Non-contractual procedures are easier to amend and the same procedure can be applied to all staff.

In Edwards, the Trust failed to follow a contractually binding disciplinary procedure before dismissing E. Had the contractual procedure been followed correctly, E did not believe that he would have been dismissed.

E's actual claim is still ongoing. E claims that as a direct result of the finding against him, he will never find an equivalent, permanent role. He is claiming nearly £4.3 million of lost career earnings and pension.

The Trust argued that long standing legal principles meant that compensation should be limited to E's three month contractual notice period and the period it would have taken to complete the procedure. The Court of Appeal rejected this argument, potentially enabling E to be compensated for loss of office and career. This finding could open the floodgates to similar claims from members of all professions, including teachers.

The maximum compensation in unfair dismissal cases is currently £65,300. Breach of contract claims have previously been used to get a few months extra pay when contractual disciplinary procedures are not followed. In light of Edwards, damages can now reflect whether the outcome of dismissal proceedings would have been different if the correct contractual procedure had been followed.

Edwards could have a significant impact on the education sector as dismissal can have career ending implications for teachers. If your school's procedures are contractual, an urgent review of your employment contracts and procedures is required, for both existing and future staff.

Compensation for loss of career can only arise in breach of contract cases such as Edwards, where a contractual disciplinary procedure was not properly followed.

For more information, contact Simon Bevan on 0117 314 5238.

E-safety in schools and the Acceptable Use Policy

As schools are only too aware, the internet can be used for bullying and abuse by pupils. Often the anonymity offered by the internet means that it is more difficult for staff to identify and take swift action.

There are a number of steps that schools can take. The first step is to appoint a member of staff with responsibility for e-safety. This could be the designated person for child protection or another senior member of staff with specialist knowledge of technology. The e-safety staff member can track technological developments and work with the designated person to ensure that the safeguarding and bullying aspects of such changes are considered and monitored.

Acceptable use of ICT policy
The next step is to draft and implement an Acceptable Use of ICT Policy (AUP), in consultation with pupils, staff and parents. The AUP should include a definition of e-safety, explain procedures in place for dealing with e-safety incidents and set out rules for pupils to follow when using the internet and other electronic equipment.

The AUP must reflect the provisions of the school's anti-bullying and discipline policies to ensure the school is entitled to take appropriate steps to discipline pupils as they find increasingly inventive ways of accessing/utilising ICT in matters which offend acceptable standards of behaviour and discipline.

The Safe to Learn (cyberbullying) guidance states that schools should establish and review AUPs to ensure that monitoring and existing procedures are adequate. In addition, Professor Tanya Byron in her report, Safer Children in a Digital World recommended that all schools have effective AUPs. Schools that consider e-safety matters as part of their safeguarding and bullying procedures are likely to be commended.

For more information, contact Rosemary Tura on 0117 314 5233.

Tragic pupil death on school trip leads to questions over risk assessment

The need for dynamic risk assessments on educational visits and school trips has been again brought into focus by the tragic death of Natasha Jade Paton, a pupil at Lanark Grammar School on 31 March 2010.

Natasha and a group of sixth formers were on their way to Alton Towers, when their coach driver lost control of the vehicle in snowy and icy conditions and the coach skidded off the road into a river just 12 miles into the journey.
The weather conditions have been described as 'atrocious' by the rescue crews and one pupil's mother refused to allow her son to go on the trip because of the treacherous road conditions. This has inevitably raised questions as to whether the school should have allowed the trip to go ahead at all.

Investigations have commenced into the tragedy and, while there is no indication that any charges will be brought, the presence or absence of adequate risk assessments will undoubtedly be considered as part of those investigations.

Ongoing or dynamic risk assessments should be undertaken on all visits to take account of changes in hazards both prior to embarking on visit and as visits progress. These should include matters such as changes in weather or traffic conditions. Your Educational Visits Policy should include provision for dynamic risk assessment to enable proper account to be taken of up to date information. These risk assessments need not be written but there needs to be a system in place for such assessment to be undertaken. Dynamic risk assessment is essential to ensure safety and to protect schools, as well as pupils.

While convictions against schools or teachers are rare, this tragic incident brings the importance of proper risk assessment into focus, particularly with the release of new guidelines on sentencing for corporate manslaughter which indicate that fines on conviction will seldom be less than £500,000 and may extend to many millions of pounds.

For advice or assistance relating to a death or incident at your school or in relation to risk assessment, educational visits or transport arrangements, contact Tabitha Cave on 0117 3145381 or Natalie Andrews on 0117 3145433.

The Equality Act 2010: new duty on all schools

The Equality Act 2010 received Royal Assent on 8 April 2010. One of the most important implications for all schools is that auxiliary aids and services are to be included in pre-16 educational provisions.

This means that independent schools will be under a duty to provide auxiliary aids and services where reasonable.
Prior to this enactment the reasonable adjustments duty for auxiliary aids and services contained within the Disability Discrimination legislation did not apply to pre-16 educational provisions. It was considered that the provision of these aids and services was made available through special educational needs provision.

The new duty was recommended as a result of the Lamb Inquiry in December 2009 but it was previously recognised by the Disability Rights Commission in 2007 that there was a gap in provision for disabled children which could potentially lead to barriers in participation in school life and difficulties accessing teaching and learning.

The new duty to provide auxiliary aids and services applies to all children, not just those with statements of special educational needs and parents will have a right to take the matter to the First Tier Tribunal (SEND) if the school fails to comply. However, offering to discuss matters at school together with offering the use of the complaints procedure without resulting to tribunal will be the best method of ensuring that a child's needs are met.

The new duty is to apply when a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The duty is to take such steps as are reasonable to provide the auxiliary aid.

A consultation on non-statutory guidance for education providers closed on 17 March 2010. Unhelpfully, this did not deal with auxiliary aids and services in any detail. Consultation on statutory codes of practice that will draw on precedent and case law will follow. The information currently available indicates that some elements of the new Act will come into force as soon as October 2010. Watch this space for further details.

For further information, contact Tracey Eldridge-Hinmers on 0117 314 5378.

Referrals guidance

The ISA has issued new guidance on referrals. Since October 2009 relevant employers have had a duty to refer an individual to the ISA if that person has left their employment in circumstances which raise concern for the safeguarding of children or vulnerable adults. This replaces the former duty for schools to refer such individuals to the Secretary of State.

Key changes include:
• more detailed explanation of the referral duties placed on a Personnel Supplier. It is pointed out that a teacher training college which supplies students to a school has a duty to refer that student to the ISA if it becomes aware that the student may satisfy the referral criteria; and
• clarification of the effect of suspension of staff 'without prejudice' and confirmation that the duty to refer to the ISA is triggered only when the employer has clear evidence, after an investigation of any allegations, that the individual concerned has harmed a child or engaged in conduct that makes them unsuitable to work with children. The previous guidance advised that referral was still necessary if the person was returned to their workplace with a warning or additional training but this is no longer the case. The duty to refer arises only if the person leaves your employment (through dismissal or resignation) or if the suspension is continued due to risk of harm while further advice is sought.

Schools are advised to read the referral guidance in full and to download the relevant forms from the ISA website as failure to refer in an appropriate case is a criminal offence.

For advice, contact Richard Hewitt on 0117 314 5320.

The Accredited Schools Quality Mark: working with the state sector

Many independent schools already work with schools which are state funded and often in an informal collaborative way. However, increasingly, and particularly where considerable school improvement is required in the state funded school, relationships with independent schools are being legally formalised by incorporating them into the governance arrangements for the state funded school and in particular, by converting state schools into academies or trust schools.

From the 1st April 2010, all organisations, including independent schools, which are interested in becoming either:
• the lead sponsor for a new academy; and
• the lead partner for National Challenge trust schools or federations being established as a result of a formal school improvement intervention will first need to obtain the new Accredited Schools quality mark.

There are two levels of accreditation: Accredited School Providers (ASPs) and Accredited School Groups (ASGs). ASPs are eligible to take over up to two underperforming schools whilst ASGs can lead three or more of these schools. The requirement for accreditation does not apply retrospectively to organisations that already act as lead sponsor for Academies or lead partners for majority trusts or federation and those organisations can continue to act without accreditation. However, existing lead sponsors or lead partners will need to seek accreditation in order to be selected to lead further Academies, majority trusts or federations.

To become accredited, organisations must demonstrate their relevant expertise, track record and capacity to support improvement in underperforming schools. The DCSF will assess an application for accreditation against published criteria which can be found on the DCSF website. The final decision on accreditation is made by the Secretary of State.

Applications rounds are held termly although it may be possible to seek accreditation outside the termly rounds through direct consultation with the DCSF. The most recent round of applications closed on the 10 March 2010 (in relation to the secondary phase) and 31 March 2010 (in relation to the primary phase) but further rounds will be held in the summer and autumn.

For further advice and guidance on trust schools, academies or applying for accreditation, contact Chloe Brunton on 0117 3145 301.