Out in the cold

A new website has lifted the lid on unacceptable behaviour in schools. As a consequence, many schools will have to review whether and how to exclude some pupils Vicky Wilson reports…

With the wider return to schools from 8 March 2021, there were so many issues for senior leaders to manage, but there are some wider issues beyond COVID that are now being brought to the fore.

The “Everyone’s Invited” website has highlighted the scale of sexual harassment in schools and, at the time of writing, the website has received more than 12,600 reports of harassment, abuse and assault from women and girls.

Many of the testimonies are anonymous, but the majority name a school attended either by the alleged victim or the alleged perpetrator now or at the relevant time of the incident they are reporting.

The government has launched a review and a dedicated helpline has already been set up for victims of sexual abuse in schools which can be used by children and adults to seek advice on how to contact the police and report crimes (details at the end of the article). The Ofsted-led review began with an immediate review of safeguarding policies in all types of schools and will conclude by the end of May 2021. We will await the report and any recommendations. Further guidance for schools on how to respond to claims of sexual harassment may also follow.

Independent schools may face related issues over the coming weeks, including disclosures from pupils directly and the connection between this safeguarding issue and exclusions relates to disciplinary sanctions in response  to unacceptable behaviour.

Exclusion

A headteacher, or authorised deputy on their behalf, has the power to exclude a pupil in response to a serious breach or persistent breaches of the school’s behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. In serious cases, permanent exclusion remains an option of last resort for headteachers.

The right to exclude a pupil at an independent school derives from the contract between the school and the fee payer, usually the parents of a pupil. It is therefore important to understand whether and to what extent the school rules, behaviour policy and/or exclusions policy form part of the contractual arrangements and to ensure that any processes within these policies are followed.

Although the legislation regarding exclusions does not directly apply to independent schools, the exclusions guidance issued by the DfE is often used as a benchmark of best practice in the sector. It sets out some of the more general legal principles that independent schools are bound by, for example, legislation relating to safeguarding, equality, human rights, health and safety and data protection.

As a general rule, exclusion decisions must be lawful, rational, reasonable, fair and proportionate. Each case will be fact-sensitive and all those involved will need to be treated with the appropriate level of care.

How to handle a disclosure or incident

Firstly, schools will need to consider whether there is sufficient information available to begin an investigation. It is important that the allegation is sufficiently detailed to enable the alleged perpetrator to respond to it as part of the disciplinary process. However, before you get to the point of internal investigation you should refer to the school’s safeguarding policy and follow your local reporting procedures. If the matter meets the threshold for referral to the local authority or the police, this needs to be done in the first instance.

Police involvement may lead to pupils being interviewed while on the school site or at home. The police will communicate with the school to confirm whether any further action will be taken by them in relation to criminal proceedings.

It is vital not to do anything to jeopardise a police investigation and there may be a period of delay that you need to manage at school whilst this decision is reached. How you deal with the delay will depend on the specific nature of the allegation and the individuals concerned.

The school’s designated safeguarding lead (DSL) will consider the immediate response required, with reference to “Keeping Children Safe in Education”

(https://www.gov.uk/government/publications/ keeping-children-safe-in-education--2), which contains guidance on the sharing of classrooms or space at school or on school transport if both individuals are current pupils at the school.

“Independent schools may face related issues over the coming weeks, including disclosures from pupils directly.”

These types of measures should be taken immediately in order to protect those involved and should not be viewed as a determination as to the guilt or innocence of either party.

Once you have confirmation from the authorities, the school can proceed with an internal investigation. Decide which colleague is best placed to gather the evidence and report to the headteacher. (For further details, see my previous article on conducting internal investigations: https://iexcellence.co.uk/editions/ii-spring-2021/index.html?page=26). Issues that frequently arise here relate to:

• The parties being accompanied to interviews, which can mostly be agreed with the pupil concerned if your policy does not stipulate one way or the other.
• The use of social media evidence, such as screenshots of conversations or online posts and whether this can be shared with the pupils concerned and/or their parents. Keep in mind that the school could be handling criminal offence data and that you will also need a ‘lawful condition’ to rely on if you wish to ‘process’ this data. There are several data protection issues to consider here and you will also need an appropriate policy document that addresses this type of processing.
• Witnesses or other third parties and how much information should be shared with them. Similarly, this will need to be considered on a case by case basis and in line with data protection law.

Facts first

The headteacher will need to consider the facts and evidence to reach a decision as to the appropriate disciplinary sanction. It is essential to apply the policy fairly and consistently in this regard. The letter explaining the head’s decision needs to be sufficiently detailed and explain the reasons for the decision, yet robust enough to withstand future scrutiny. This decision may be challenged by way of an exclusion appeal (in line with school policy), via the school’s complaints policy, or by way of threatened litigation against the school, usually on breach of contract grounds.

Record-keeping will be important and a paper trail of not only the evidence, but any considerations, reasons for dismissing options and reasons for adopting decisions along the way will assist in protecting the school’s position.

Schools have been criticised for failing to tackle incidents of this nature or acknowledge the wider issues around sexual abuse and harassment. My advice to governors of independent schools would be to ensure that your school is being proactive and taking steps to review the following:

• Safeguarding and behaviour policies.
• School rules.
• PSHE content to ensure sufficient time is spent talking about healthy relationships and consent.
• The support that is already in place for victims within school and locally and how any gaps can be bridged.
• Staff and governor training on roles and responsibilities for safeguarding.

There are already stories of pupils forming student societies to actively address some of the wider issues in school. Some schools are considering self-defence classes for pupils in Years 7 and above. Your senior leadership teams can talk about topical issues in assemblies and set an example by calling out behaviour that has become normalised when the opportunity arises. You will know your school community best and your pupils may now feel empowered to contribute to any changes you intend to introduce.

The Report Abuse in Education helpline details are as follows:

Tel: 0800 136 663 or by email: help@nspcc.org.uk

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Vicky Wilson is a senior associate in the Education team at Wilsons. Vicky can be contacted on vicky.wilson@wilsonsllp.com or 01722 427756.