Bullying – Responsibilities of Schools
A major problem facing students nowadays, particularly in schools, is one of bullying. Whilst the concept itself is no different, the legal responsibilities of Schools have changed with the advent of legislation and with the unfortunate expansion of different types of bullying.
The Department of Education released a guide last year for head teachers, staff and governing bodies entitled “Preventing and Tackling Bullying” which replaces a previous document, “Safe To Learn: Embedding Anti-Bullying Work in Schools”, and which contains a useful run through of the legal obligations incumbent upon those at which it is aimed.
Section 85(1) of the Equality Act 2010 provides that:
(1) The responsible body of a school to which this section applies must not discriminate against a person –
(a) in the arrangements it makes for deciding who is offered admission as a pupil;
(b) as to the terms on which it offers to admit the person as a pupil;
(c) by not admitting the person as a pupil.
The term “discriminate” falls under the new public sector Equality Duty, which came into force on 5 April 2011. It prohibits discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
There are exceptions however relating to single-sex schools, religious schools and maintained schools as relating to the areas of sex, religion or belief and disability respectively.
As outlined in the Department of Education guide, the public sector duty has three aims, and requires public bodies to:
- Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act
- Advance equality of opportunity between people who share a protected characteristic and people who do not share it; and
- Foster good relations between people who share a protected characteristic and people who do not share it.
Schools must therefore take bullying very seriously and must be aware of an express statutory duty to do so.
With the use of the internet and smart-phones, and school trips being increasingly commonplace, bullying is no longer limited to the playground or other areas of school property. It is therefore increasingly difficult for teachers and other staff members to be aware of a problem. Schools are advised to have a clear policy in place which encompasses not only physical bullying on site, but also other forms of bullying such as harassment by mobile telephone or email or the posting of offensive material on social media pages. This will undoubtedly require vigilance on the part of Schools and it may be appropriate to have a system in place whereby students can give feedback anonymously as to anything that has been seen online, or as to any material received by email or by mobile telephone.
In terms of dealing with the problem, it is advised that parents and pupils alike be fully involved in any investigation and be kept abreast of the likely procedure involved. Schools should be aware that incidents of bullying may well amount to criminal offences such as those of assault, harassment, incitement to racial hatred, or even threats to kill in some severe circumstances. Clearly, in these circumstances, it may be necessary to involve the Police, however that will be dependent on the facts of the individual case and also the parties involved. Schools should however make their stance on bullying very clear from the outset so that in the event of any problem occurring, the recipient of any such conduct is well aware of the options open to them in reporting any concerns that they may have. Both sets of parents should also be informed, similarly and if necessary both parents and children should be referred to any external organisations for support. Where it is intended that the Police should be involved, it would also be prudent to advise parties to seek independent legal advice.
The Department of Education’s guide advises that any disciplinary measures must be applied “fairly, consistently and reasonably”, and it is important that decisions as to suspension or exclusion are well reasoned. Again, it will depend on the case in point, and it may well be that mediation at an early stage will not only satisfactorily resolve matters but will also prevent recurrence. In other cases however, a more strict line may well need to be taken.
Schools should also ensure that staff members are given sufficient training in relation to spotting the effects of bullying and in dealing with any bullying that they observe themselves or are told about. It would be advisable to have someone appointed to oversee any complaints, who can co-ordinate matters leading up to any official internal investigation.
Most schools will at one time or another have to deal with an incident of bullying and it is obviously a better idea to be proactive on this front rather than reactive. A firm but fair policy should ensure that all parties are fully aware of the School’s stance from the outset. On the other hand, a failure to take proper action could lead to a claim against the School on behalf of the bullied child/children or potentially more serious consequences where the bullying results in serious injury or even death.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.