CONTENTS 1-2 Vexatious Requests 3-4 Exclusions 4
Academies and Consulting with Your Staff
5-6 Free Schools
Education Law News Autumn 2010
Vexatious Requests The Academies Act has confirmed the Government’s intention to bring Academies within the Freedom of Information Act (FOIA) regime. No timeframe has yet been announced, but when the provisions are in force, academies will doubtless join the growing number of maintained schools facing vexatious requests for information. There is no doubt that the FOIA is a useful tool for the public to obtain information about public bodies that would not otherwise be available. However, it is subject to abuse by a minority of individuals intent on harassing or causing inconvenience to public bodies. Complying with repeated and troublesome requests can be draining and demoralising for all involved, but there is a solution! If a request is “vexatious” or has already been complied with within a reasonable period, there is no requirement to provide the information asked for, and a recent case decided by the Information Rights Tribunal offers further encouragement for those suffering these requests.
What is vexatious? There is no definition of the term “vexatious” in the Act itself, but the Tribunal has referred to the normal usage of the word to describe activity that is likely to cause distress or irritation,
“There is no definition of the term “vexatious” in the Act itself…”
literally to vex a person to whom it is directed. In the Hossak case the Tribunal stated that “for the request to be vexatious there must be no proper or justified cause for it.”
which is relevant, rather than the attributes of the individual. When deciding if a particular request is vexatious, the background history between the applicant and the public authority (i.e. the school) should be considered, as the context of the request may
the effect of the request is vexatious and not whether the
provide the grounds for it being vexatious, rather than the request
applicant is vexatious. It is the effect on the public authority
itself. For example, a request that appears to be intended simply
Significantly, therefore, the exemption is concerned with whether
Vexatious Requests (continued)
to reopen issues which had been disputed several times before would suggest it is vexatious.
General principles The Information Commissioner (ICO) has produced guidance on the meaning of vexatious and the recent Tribunal case of Ward v IC (decided in May 2010) summarises some helpful general principles and offers some pointers for schools along the way. Whilst a case turns on its own facts, the Tribunal has given some indication of considerations that may be relevant when looking at a potentially vexatious request: ◆ where the request forms part of an extended campaign to expose
alleged improper or illegal behaviour, where there is evidence to indicate that the campaign itself is not well founded; ◆ where the request involves information which had already been
provided to the applicant; ◆ the nature and extent of the applicant's correspondence with
the public authority suggests an obsessive approach to disclosure; ◆ the tone adopted in correspondence is tendentious and/or
haranguing; ◆ the correspondence could reasonably be expected to have a
negative effect on the health and well-being of officers; and ◆ responding to the request would be likely to entail substantial
and disproportionate financial and administrative burdens. The Tribunal also highlights the need for a balance to be struck between the need to protect public authorities on the one hand and the need not to constrain, unfairly, requests for information
“When deciding if a particular request is vexatious, the background history between the applicant and the public authority (i.e. the school) should be considered…” it is important to remember that it is the request that is vexatious, not the person making it, so they may make a perfectly reasonable, un-vexatious request at a later date.
on the other and the vexatious exemption should not be used lightly.
Even if a person, for example a parent, has a legitimate grievance against a school, remember that both the ICO and the Tribunal
Particular issues for schools
have a limited jurisdiction. Neither can make a finding in relation
The case underlines a number of other important considerations
to the underlying complaint. If the request is, on the facts,
which schools will need to be aware of, including the relevance
vexatious, then the ICO (and the Tribunal, if the decision is
of the size of the governing body. Requests made to a smaller
appealed) must support the school’s reliance on the exemption.
governing body will have a larger administrative impact and the
In Ward v IC the parent making the requests was doing so in
threshold for when requests becomes vexatious is likely to be
order to support an allegation that her child had been bullied
lower than in schools with a larger and better resourced governing
and that the school had failed in its duty to protect him. However,
because her requests were vexatious, her appeal was unsuccessful.
When looking at the context of a particular request, all previous
Finally, a school must remember to inform the requestor within
requests/conduct of the parties making the request is relevant
20 days of receipt of the request that the school is relying on the
– not just requests that relate to one particular issue. However,
vexatious exemption. Tom Murdoch firstname.lastname@example.org
Exclusions Headteachers (or in their absence, the teacher in charge) must
in “exceptional circumstances” “usually where further evidence has
have regard to the Secretary of State’s guidance on exclusions
come to light”. Normally there is no further evidence that comes
“Improving Behaviour and Attendance: Guidance on Exclusion
to light in this short period, but the headteacher reflects that
from School and Pupil Referral Units”.
permanent exclusion is the correct sanction.
The Guidance refers to four sets of circumstances where an
A recent case in Northern Ireland that came before the Supreme
individual pupil may be required to leave the school site:
Court looked at the process of exclusions. The NI process is in
1. There is sufficient evidence that a pupil has committed a
virtually all respects identical to the exclusion system in England
disciplinary offence and allowing the pupil to remain in school
and Wales. In this particular case, the principal had ordered that
would seriously harm the education and welfare of the pupil or
a pupil remain at home whilst investigations were carried out.
others in the school;
It was termed a ‘precautionary exclusion’. The Supreme Court has ruled that this was unlawful and at least one commentator
2. A pupil is accused of a serious criminal offence but the offence took place outside the school’s jurisdiction. In these circumstances the headteacher may decide it is in the best interests of the individual and the community for that pupil to be educated off
on the case has cast doubt as to whether a headteacher may exclude a child for a fixed term in order to continue to investigate, and/or as a means of protecting the health and safety of the school community.
site for a certain period; A headteacher who excludes for a fixed term has to be satisfied 3. Medical reasons; 4. A pupil is given permission to leave the school premises briefly
that a serious offence has taken place and that it is appropriate to impose a disciplinary sanction. What therefore is the
to remedy breaches of the school’s rules on appearance or
“exceptional circumstance” that permits the school to extend
the fixed term exclusion and/or make it permanent?
The Guidance states that a decision to exclude a child permanently
The Supreme Court appears to have rejected the notion, where
is a serious one and should only be taken where the basic facts
there is a disciplinary aspect, that a headteacher can require the
have been established on the balance of probabilities.
pupil not to attend school as part of his general management
Furthermore exclusion should not be imposed in the heat of the
powers, without going through a formal exclusion process. The
moment unless there is an immediate threat to the safety of
Supreme Court has said that this general management power
others, but after a thorough investigation has been carried out,
was likely only to apply if there were medical reasons – for example
all evidence available considered and pupils allowed to give their
the pupil had a contagious disease - although the door may still
version of events.
be open in relation to other action where there is no disciplinary
If a headteacher is satisfied that, on the balance of probabilities
a pupil has committed a disciplinary offence and needs to be
In my view where a headteacher is faced with a disciplinary
removed from school for that reason then formal exclusion is
situation that he would wish to investigate further, but is satisfied
the only lawful method of removal.
that on the balance of probabilities the offence has taken place
Often, a headteacher will initially exclude a pupil for a short fixed
[which he must be] the headteacher may exclude the pupil for
term and record in the exclusion letter that investigations will
a fixed term and record in the letter that the exclusion is on
continue and the exclusion may be made permanent. This
disciplinary grounds and that it may be made permanent; however
appears entirely proper, avoiding a ‘knee jerk’ reaction and allowing
the headteacher wants time to reflect on the gravity of the offence
a considered decision to be made. But is this actually a lawful
and the risk to the school community. Whilst it may not be the
process? The Guidance states that such practice (i.e. converting
case that ‘new evidence comes to light’ in the intervening period,
a fixed term exclusion into a permanent one) should only be used
I believe that a headteacher may still convert the fixed period
exclusion into a permanent exclusion setting out clearly the
ensure that the conversion to permanent exclusion is effected
reasons for so doing.
before the expiry of the term of fixed term exclusion.
There could be an argument of double jeopardy (being punished
If the headteacher is not initially satisfied on the balance of
twice for the same offence). However that argument is offset by
probabilities that the offence took place then no fixed term
stating that permanent exclusion is ‘usually the last resort’ and
exclusion should be made. The headteacher will need to manage
the headteacher wanted to evaluate all the evidence available,
the situation internally, whilst continuing investigations before
consider risk assessments or alternative strategies etc. Note that
coming to a decision. By not imposing a disciplinary sanction at
the Guidance is just that, and provided the headteacher has had
that stage, the headteacher is free to move direct to permanent
regard to it and has cogent reasons for deviating from it, any
exclusion if the facts warrant it.
legal challenge based on the fact that the headteacher has not
For advice on exclusions including reviewing your disciplinary /
followed the Guidance to the letter can be defended. What is
behaviour policies please contact Michael Brotherton
essential though, to avoid a valid claim of double jeopardy is to
Academies and Consulting with your Staff If your School is considering applying for Academy status it is
◆ a reason connected with the transfer that is not an economic,
important that the employment law issues are appropriately
technical or organisational reason entailing changes in
the workforce (an ETO reason).
The change in status will amount to a relevant 'transfer' under
The majority of Schools transferring to an Academy would not
the Transfer of Undertaking (Protection of Employment)
want to dismiss any of their staff but they might wish to change
Regulations 2006 ('TUPE').
their Terms and Conditions.
The transfer does not terminate the employment contracts of
It is possible to make changes to employment terms before or
the staff at the existing schools. Instead those employees will
after a transfer (a "permitted change") where the sole or principal
transfer to the Academy under their existing terms of employment
reason is either:
and with their continuity of service intact. This means that there
◆ a reason unconnected with the transfer;
is no break in the employees’ service. ◆ a reason connected with the transfer which is an ETO reason
The Academy steps into the school’s shoes with regard to the
entailing changes in the workforce.
employment contracts and anything done (or not done) by the school before the transfer is treated as having been done by the Academy.
If the Academy is unable to establish an ETO reason for the changes, it is at risk in relation to any claims which may be brought by employees.
The TUPE regulations enhance transferring employees’ unfair dismissal protection by providing that certain dismissals are automatically unfair. As a result the Academy is severely limited in its ability to dismiss employees fairly when a TUPE transfer occurs.
If the variations are invalid then even if the employee accepts them they will not be bound by them. Indeed, in those circumstances they are entitled to take the benefit of any improved terms but ignore the detriment of any less favourable terms. Consequently, it is important to take care and indeed take
Any dismissal of an employee with continuous employment of
appropriate advice during the process.
a year or more will be automatically unfair where the sole or principal reason for the dismissal is either:
For further information regarding ETOs and what can and cannot be done or how it can be done on the creation of an Academy
◆ the transfer itself;
please contact Nick Watson email@example.com.
“New free schools, by definition, add to pupil places in an area.”
Free Schools An important and well-publicised element of the coalition government’s education programme is the creation of so-called Free Schools. These, in essence, will be publicly funded schools set up by individuals or organisations who see a need for a new school to meet particular needs. The promoters will, characteristically, be parents, teachers, charities and perhaps existing independent schools although the indications coming from the Department for Education (DfE) is that they do not see this as a rescue opportunity for failing independent schools. The Academies Act refers to the schools as additional schools. The schools will be set up legally as academies, so that they will be constituted as a charitable company limited by guarantee operating under a funding agreement with DfE, under which the company commits to providing and running the school and DfE commits to providing funding. Funding will be on a similar basis
expect to see a return so will expect a rent. Alternatively
to other academies which means that they will broadly receive
promoters may raise capital privately and have interest costs.
what a comparable school within their local authority would
Schools currently are not funded in a way that allows for rent or
receive together with additional funding representing money
interest on borrowing, so free schools will need additional
which a local authority would hold back centrally. They will have
resources if they are to operate on a level playing field with other
academy freedoms which, in essence, means freedom (with
schools in their area. One suggestion from DfE is that there will
certain restrictions in relation to RE and collective worship and,
be capital grants to cover this but more detail will be needed to
in the case of secondary schools, Key Stage 4 and post-16 provision)
be sure that rising rents or increased interest charges can be
as to the curriculum and the right to set individual employment
terms and conditions without being bound to follow STPCD for
New free schools, by definition, add to pupil places in an area.
teachers or the local authority Green Book for non-teaching staff.
Indeed, that is a central point, that the schools will make new
It has been said that planning restrictions on establishing new
provision of a kind that is not currently available and that non-
schools will be removed. It remains to be seen whether that
availability is not necessarily related to an insufficiency of places.
means that there will be no planning restrictions at all, raising
Existing schools may, therefore, suffer and some may well struggle
significant questions about matters such as environmental impact
to survive. Perhaps an unarticulated sub-text of free schools is
including key flash points such as traffic and parking, or whether
to procure the disappearance of schools that do not meet popular
there will simply be a relaxation of the rules relating to the change
demand without actively having to engage in a general re-
of use of existing buildings. There will be limited capital available
organisation process. However, the Act provides that a
and what there is will be allocated to refurbishment and
consultation must be entered into with such persons are
adaptation. Promoters will normally be expected to identify and
considered appropriate and one would expect challenges to be
provide premises, which may be for example, converted offices
made where this consultation fails to include relevant local
or a hospital and DfE, working through Partnership for Schools
if that body survives as the body responsible for capital funding,
Some free schools will be promoted by bodies with expertise in establishing and running schools. Others, especially those
on-going premises costs will be met. Owners of property will
proposed by small groups of parents or teachers, will need
will assess suitability and adaptability. One open question is how
significantly more support. They will possibly be supported by an accredited provider, again assuming that this concept survives, and in any event will get initial guidance from New Schools Network which is a separate charity funded by DfE set up to assist and co-ordinate applications for free schools. The initial process is conducted through them by completing a short proposal form. New Schools Network will assist promoters (directly or by reference to external organisations) to prepare and complete the form but our understanding is that all applications will be considered by DfE. Richard Gold firstname.lastname@example.org
Your Contacts Education: Roger Inman Partner Richard Gold Consultant Stephen Ravenscroft Partner Michael Brotherton Senior Associate Employment: Nick Watson Partner Peter Woodhouse Partner Tamsin Wilkinson Solicitor Jean Boyle Associate
Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437
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© Stone King LLP 2010
The Education Bulletin deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ