Latest news/legal update
Next edition of FIS
The next issue of Funding for Independent Schools will be mailed out to bursars and heads in September 2010. 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
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.
