Discipline beyond the school gate

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As part of the Government’s ‘Respect’ agenda, plans have been announced to extend teachers’ disciplinary powers to deal with pupil misbehaviour on their journey to and from school. Mark Blois, education law expert at Browne Jacobson, delves into the legal grey area that is teacher’s disciplinary powers.

At a time when media reports of violent attacks by school pupils are becoming more commonplace comes a call for teachers’ disciplinary powers to be extended. Inevitably, not far behind are concerns that the current law on this matter in this area is unclear and confusing.  These concerns may be nothing new, but what is clear is the need for legislation reaffirming and clarifying these powers.

A report from the Practitioners’ Group on Behaviour and Discipline, chaired by Sir Alan Steer and published in October 2005, set out more than eighty detailed recommendations designed to tackle more widespread, low-level disruption in schools, as well as incidents of serious misbehaviour and violence.

The report was, in general, warmly received by teachers’ groups. This is perhaps unsurprising, given that the basis of teachers’ authority dates back to a now arguably insufficient principle, loco parentis, which broadly awards teachers the same authority over pupils as parents have over their children.

Whilst administering discipline within the school environment is undeniably part of a teacher's role, the Government has recently made clear its intention to create new statutory powers, to be made enforceable on pupils' journeys to and from school.

What shape will this new aspect of proposed legislation on school discipline take?
To a large extent, the picture remains unclear. Whilst recommending that teachers receive “clearer statutory powers” to use reasonable force in cases of pupil misbehaviour, the Steer Committee did not comment specifically on managing discipline beyond the school building. Additionally, teachers’ rights to punish have become less of a concern over recent times than their authority to use reasonable force to physically intervene, following a spate of incidents of pupil-on-pupil violence.

Uncertainty lingers, therefore, over the circumstances and steps that teachers will be able to take when disciplining pupils outside of school premises. No doubt this issue will attract considerable debate during the course of the Education Bill's passage. However, the proposals are perhaps not as radical as reports might have led us to believe. They may, in fact, simply build on powers already available.

Nothing New?
Under the common law, teachers owe pupils a duty of care to take reasonable steps to protect them from foreseeable physical and psychological injury. This may involve them taking reasonable steps to manage disruptive and violent pupils who pose a threat to others.

This duty already extends to controlling and punishing misbehaviour outside school. In fact, case law indicates that a school may be in breach of its duty in certain circumstances for failure to take steps within its powers to tackle harmful behaviour outside of the gates.

Teachers also have statutory powers, laid down in the Education Act 1996, to physically intervene in certain circumstances to restrain violent or disruptive pupils. Reasonable force may to preventing a pupil from:

  • Committing an offence
  • Causing personal injury (including to his or herself)
  • Damage to property (including his or her own) 
  • Engaging in behaviour which may impair the maintenance of good order and discipline at the school or among any of its pupils

It is important to note that these powers are not limited to situations which occur on the school premises or during school hours. Neither does the Act set out an exhaustive list of the situations in which it might be acceptable for a member of staff to use reasonable force.

To draw a comparison: every individual has the right to defend his or herself against a physical attack, provided that they do not use a disproportionate degree of force. Similarly, in an emergency, for example if a pupil was at immediate risk of injury or on the point of inflicting injury on someone else, a member of staff would be entitled to intervene.

In either case, there is no legal definition of 'reasonable force'. What may be considered reasonable will depend entirely on the circumstances of a particular case.

In a school context, however, there are two points to bear in mind. Firstly, the use of force can be regarded as reasonable and lawful only if the circumstances of the incident warrant it. As such, physical force could not be justified to prevent a pupil from committing a trivial misdemeanour, or in a situation that clearly could be resolved without it its use.

Secondly, the degree of force employed must be in proportion to the circumstances and seriousness of the incident, and/or the consequences it is intended to prevent. Any force used should always be the minimum needed to achieve the desired result. Whether or not it is acceptable to use force, and the degree of force that could reasonably be employed, might also depend on the age, understanding, and sex of the pupil concerned.

Teachers will have many complex factors to weigh up when dealing with situations that may have potentially harmful outcomes. When called upon to make quick decisions in ‘heat of the moment’ circumstances the ability to keep in mind these issues will obviously be impaired. This difficult exercise is not helped by a lack of clarity concerning teachers’ disciplinary powers, a minefield that could be extended further if teachers’ gain the right to punish pupils to and from school. With all this in mind the concerns teachers have expressed regarding this are understandable.

Beyond the call of duty?
The Government's latest proposals for extending teachers’ powers of intervention outside school are in keeping with the pivotal role schools and teachers are to play in the Every Child Matters reform programme, which is developing a number of policies and strategies designed to safeguard and promote pupils’ welfare.

Given the ambitious nature of these reforms, it is becoming increasingly ineffective for teachers’ disciplinary duties to end at the close of the school day. However, the extent to which physical interventions outside of school sit within a teacher’s professional remit is open to question. The negative reaction among some elements of the teaching community to the Reduction of Violent Crime Bill, which proposes giving Headteachers the power to search pupils for weapons should they have reasonable suspicion that a pupil in is possession of them, suggests that proposals to extend powers to intervene with force away from school may also receive a lukewarm reception.

Until the time comes to change
Until the position is clarified, schools should ensure that steps are being taken to assess potential risks caused by disruptive pupils, so that these can be managed in the same way as any other risk under health & safety legislation. 
In their capacity as employers, headteachers, governing bodies and local authorities all have a responsibility to manage potential risks to health and safety within schools.

This duty requires the maintenance of a working environment which is safe and without risk to health, ensuring:

  • the safety of its employees
  • that others are not exposed to health and safety risks so far as is reasonably practicable
  • that premises without risk to health and safety so far as is reasonably practicable

Risk assessment is therefore a vital exercise, not only to minimise the chances of identified risk occurring, but equally in the event that a threat transpires, as an audited risk assessment will serve to illustrate that everything necessary was done to prevent this.

What the future will bring for teachers’ disciplinary powers is unclear, as is the question of whether powers beyond the school gate will be strengthened. This latest, potentially controversial proposal will require extensive debate during the course of the Education Bill’s passage through parliament. Whether the new legislation will bring clarity to the murky waters remains to be seen.

Mark Blois is Head of Education at Browne Jacobson Solicitors. For more information, please call 0115 976 6000 or visit www.brownejacobson.com

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