Education Law Conference Exeter - Thursday 6 June 2019

Exeter
Education Law
Conference
6 June 2019

Interactive voting
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The practice of off-rolling and how to avoid getting into trouble
Off-rolling

Introduction
1. Background and importance
2. The current law and what it means for you
3. Future proposals

Background and importance
There has been a continued and
increasing focus placed on the
practice of off-rolling by a
number of key players in the
education sector:

YouGov – Teachers’ Awareness Survey 2018
11
10
45
32
2
Yes, I have seen it happen in my school
Yes, it happened in a school I previously
taught at
Yes, I have heard of it happening
No, it's not a practice I have experienced
Don’t know
Percentage of respondents

Current Law
• No legal definition
• Generally covers:
‐ illegal exclusions
‐ temporary removals to benefit
performance table results
‐ encouraging parents to remove
the child from school

Current Law
• In order to remove a pupil from the roll, schools must be able
to identify a reason as set out in the Pupil Registration
Regulations.
• These include:
• permanent exclusion
• where the pupil has registered at another school (and the
other school confirms the removal); and/or
• where the parent gives written communication that the pupil
is being educated otherwise than at school

Current Law
• Removing without satisfying one of the specified reasons is a
criminal offence
• Ofsted is also looking at this issue, although their approach has
been inconsistent
What does this mean for you?

Future Proposals
• New Ofsted framework (subject to consultation) includes a
definition of off-rolling – where decisions are taken that are
“primarily in the interests of the provider rather than in the
best interests of the learner.”
• Timpson Review – makes a recommendation that Ofsted review
off-rolling as part of inspection and where it finds off-rolling
occurring that leadership and management is judged inadequate
• New statutory guidance on exclusions coming in September 2020

Thank you
Victoria Hatton
Senior Associate
t: 0330 045 2808
e: victoria.hatton@brownejacobson.com

12 months on – what do we need to know?
GDPR, breaches and the ICO

Introduction
1. What is a data breach?
2. Special category data
3. Actions
4. Risk

Some Basics…..
• What is a data breach?
• Personal and Special Category Data?
• Actions?

What is a data breach?
A breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access
to, personal data transmitted, stored or otherwise processed.

Personal – Special Category Data ?
• Personal Data – information relating to a living individual who can
be identified directly or indirectly by an identifier e.g. name, ID
number etc
• Special Category Data – racial or ethnic origin, political opinions,
religious or philosophical beliefs, trade union membership,
health, sex life, sexual orientation or genetic or biometric data

Actions
• Minimisation - IT
• Investigation - IT
• Analysis
• Alert Police
• Third party Data Controller
• ICO
72 hours …

Risk
• Risk to the rights and freedoms of
individuals

Thank you
Julia Green
Partner
t: 0330 045 2796
e: julia.green@brownejacobson.com

Protected conversations
How to manage the sensitive situations and avoid common pitfalls

Introduction
1. Options
2. HR Live! Role-play exercises
3. Handling difficult conversations

Options
Two options for conducting a conversation with the aim of ending
the employment relationship:
1. Without prejudice conversation
2. Protected conversation

Option one
Without prejudice conversation
- where there is an existing dispute

Option two
Protected conversation
- where there is no existing dispute

Vote now! #BJ_EDC
1. Have you ever engaged in a without
prejudice or protected conversation?
2. If so, did you get the desired
outcome?

HR Live!
How not to conduct a protected conversation

Role play
What did the Head Teacher get wrong?

HR Live!
How to conduct a protected conversation

Role play
What did the Head Teacher get right?

Difficult conversations
1. Be aware of what is going on and
use your judgement
2. Control the conversation, but
ensure dignity of employee
3. The way you communicate the
matter is crucial to the success of
the conversation
Say the
right thing
to get the
right outcome
Listen
Explore
Take control
Take action

Thank you
Rachel Billen
Senior Associate
t: 0330 045 2803
e: rachel.billen@brownejacobson.com
Daniella Glynn
HR Consultant
t: 0330 045 2788
e: daniella.glynn@brownejacobson.com

Supporting your staff’s mental health and wellbeing
Happier workplaces

Introduction
1. Current state of affairs
2. Building resilience
3. Improving well being

Vote now! #BJ_EDC
Is anybody from your organisation
currently absent owing to stress,
anxiety, depression or any other
mental health condition?

Why is it important?
• More than 75% of teachers surveyed experienced work-related
behavioural, psychological or physical symptoms (compared with
60% of UK employees)
• 80% of senior leaders were suffering from work-related stress
and 63% were considering leaving the profession₁
• You have a duty of care to your employees – you must take all
reasonable steps to ensure their health, safety and wellbeing
(ACAS)
₁ Education Support Partnership Wellbeing Index Oct 2018

Sound familiar?
Wellbeing expert, Professor Cary Cooper, says:
“The whole area of workplace wellbeing has
grown following the recession – we have fewer
people doing more work, working longer hours,
more people are feeling overloaded and jobs are
no longer for life.”

What is being done nationally?
• Having a strategy is important
‐ Expert advisory group set up
to work with the government
to look for new ways to
support teachers
‐ Chaired by Paul Farmer (CEO,
Mind)

Vote now! #BJ_EDC
Does your school or trust have
a wellbeing strategy?

Consider the benefits
• Respondents who had health and wellbeing activities
or a strategy in place reported₂:
‐ Better employee morale and engagement (44%)
‐ A healthier and more inclusive workplace (35%)
‐ Lower sickness absence (31%)
₂ CIPD survey 2018 covering 4.6m employees

How can we develop our workforce?
• Building resilience to deal with pressure is important
How can we do this?
Ability to cope
with challenges
Ability to adapt
to adversity
Resilience

Resilience
Resilience
Lifestyle
Physical Nurture
Support

Benefits of a resilient workforce
• Better mental health (our duty of care)
• Improved morale = increased productivity and
fewer absences
• Better retention
• Positive impact on teaching and learning

NHS 5 steps to mental wellbeing
1. Connect
2. Be active
3. Keep learning
4. Give to others
5. Be mindful
This is something an
organisation can help
their employees with!

• Autonomy in role
• Variety
• Feeling job has value
• Have clear expectations
• Have physical security
• Have job security
• Receive supportive supervision
• Having positive interpersonal contact
• Being able to use and develop skills
• Feeling a sense of fairness in the
work place
• Level of pay
What are the things we as an employer can
control, influence and improve?
Key factors in improving wellbeing₃
₃ ACAS Wellbeing and Workplace Performance, 2018

Practical ideas – how you can help your employees
• Music in the staffroom
• Digital detox days
• Use the stairs, fun runs,
promote public transport
• Meditation
• Place your hand on your
stomach
• Breath in for four beats
• Hold for two beats
• Exhale slowly until our
lungs are empty
• Visualise a baby breathing
• Promote ‘worry time’
• Acknowledge stressors and
worries at work
• Make a list
• Read the list
• Destroy the list and take
pleasure in doing so!
• Discussion after an incident –
through effective supervision
• Self-help guides in the staff
room
• Signpost to local
counselling services and EAP
• Take the mystery out of it
• Give staff control over
their worries
Education
and
promotion
‘It’s okay
not to be
OK’
‘If oxygen
is life, get
the most
out of it’
Culture and
environment

Other ideas
Educate
Training
Staff
surveys
Assess
workload
Staff
surveys
Access
workload
Training
Drop-in
sessions
Educate
Staff
surveys
Wellbeing
first-
aiders
Policy
Anonymous
feedback
boxes

Thank you
Marie Ashton
HR Consultant
t: 0330 045 2800
e: marie.ashton@brownejacobson.com

Learning from Serious Case Reviews
Child death inquests

Introduction
1. Working together to safeguard children
2. Causes of death
3. Serious case reviews

Working together to safeguard children
Local authorities must notify Ofsted about child deaths that meet the
following criteria:
• a child has died (including cases of suspected suicide), and abuse or
neglect is known or suspected
• a looked after child has died (including cases where abuse or neglect
is not known or suspected)
• a child in a regulated setting or service has died (including cases
where abuse or neglect is not known or suspect).

2013-14 2014-15 2015-16 2016-17
Accident 12 36 20 20
Killing 31 51 27 47
Natural 48 31 42 49
Neglect 4 5 8 9
Suicide - 29 26 35
Unknown 38 38 48 51
163 190 171 211
Ofsted notified causes of death
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655716/SIN_SFR_-_Main_findings_document.pdf

57
17
27
30
45
35
74
57
80
Under 1's
NAI < 1yr
1 - 11yrs
NAI > 1yrs
11+ yrs
Suicide
• 6% of child deaths (3,575)
met the ‘Working Together’
criteria
• 47% of Early Years to KS2
deaths are non-accidental
• 43% of Secondary level
deaths are suicide
Child deaths - age profile (2016-17)

Child J
• Failure to consider the voice of the child.
• Missed opportunities to escalate
safeguarding concerns to local authority.
• Insufficient healthy scepticism for
explanations given by parental carer.
• Significant short-comings in the
documentation of concerns.
• Should not have taken “no” for an answer.

Child F
• Again, failure to consider the voice of the
child – including as to mental health
• Failure by schools to convene multi-agency
meetings
• Normalisation of risk by professionals
• Cross county boundary intra-agency
communication failures
• ‘Early-help’ vs ‘Child in Need’ thresholds
and information sharing protocols.

Thank you
Ben Bentley
Partner (Barrister)
t: 0330 045 2701
e: ben.bentley@brownejacobson.com

Are you equipped to face the challenge ahead?
Supporting transgender pupils

Introduction
1. Current state of play
2. To what extent does the law help?
3. The challenge in practice
4. Useful resources

Is this an issue for you?
16%
58%
26%
How prepared do you feel to support transgender and gender questioning pupils
I am perfectly clear on what my duties
are, how to discharge them and how to
best support the pupil
I have some understanding of the topic
and know where to look for guidance and
advice
I have little understanding of the topic
and would not know what steps to take if
a pupil told me they were transgender
Respondents: 31

NHS transgender services ‘at breaking point’ experts warn:
“a waiting list of up to 18 months for children… compared to a
statutory NHS target of 18 weeks”

The number of children being referred to gender identity clinics
has quadrupled in the last five years
“Waiting times can subject a young person to distressing bodily
changes that can lead to an increased risk of anxiety,
depression, self-harm and suicidal ideation.”

Does the law help us?
• What is the difference between being transgender and
undergoing gender reassignment?
• When are you required to act?
• What are the risks of failing to act?

The challenge in practice
Context: Large co-educational school with 2,000 pupils.
Issue: A 12-year-old boy tells a member of staff they want
to become a girl.
What issues arise/action should the school take?

Good governance is so much more than just compliance – we look at how you can
excel, lead and drive best practice
Good governance

Introduction
1. Purpose of governance
2. Driving effective governance
3. Using governance to support organisational
learning

Purpose of governance: a different perspective
Source: AoC
accountability
& compliance
representation
maximising
institutional
performance &
success

Is your Trust a learning organisation?
Learning
Organisation
1
Personal
Mastery
2
Mental
Model
3
Shared
Vision
4
Team
Learning
5
Systems
Thinking

Thank you
Nick MacKenzie
Partner
t: 07920 494713
e: nick.mackenzie@brownejacobson.com

Workshops
Main Hall Break-out Room (upstairs)
14:20 -
15:05
Workshop 1: Managing difficult
parents and their complaints Workshop 2: Scaling your MAT
15:10 -
15:55
Workshop 3: Exclusions
Masterclass Workshop 4: Staff training

Managing difficult parents and
their complaints

Introduction
1. Ability to ‘manage’ the complaint process
2. Knowledge of what an effective panel needs
to be
3. Confidence to know when to say enough is
enough…

Vexatious, unreasonable, persistent or serial
complaints
1. The same complaint again and again;
slightly different but not much…
2. 20 page complaints …
3. Unreasonable – won’t follow process;
inappropriate; desire to cause trouble -too
much time on their hands … Or genuine?

What can you do?
1. Take back control:
‐ Restrict contact to one person
‐ Ask to restrict number of contacts
‐ Manage expectations of response timings
‐ Meet face to face if abusive by email
‐ Deal with new complaints according to process

What can you do?
2. Bar from site
3. Make sure policy is clear
4. Polite but firm
5. Gradually close down
6. Short to the point replies
7. Say no to answering questions already dealt with

What about Mr Jones?
• Panel upheld the school’s decision
• He is now complaining about the process of
the hearing. He thinks it was unfair and
wrong. He has more evidence of the
playground incident and he believes the
panel was biased.
• He decides to use social media…

Top tips
1. Have a strong, simple, clear and compliant policy and follow it!
2. Stay factual (remember information rights!)
3. Clarify the complaint and ensure clear determinations
4. Have a template to follow - easier and ensures consistency
5. Consider a parental conduct/separated parents policy
6. Review the DfE 2019 Best Practice guidance

Thank you
Julia Green
Partner
t: 0330 045 2786
e: julia.green@brownejacobson.com

Getting fit to grow, evolve and improve
Scaling your MAT

Introduction
1. Why? - What is the driver, and what do you want
to achieve?
2. How? – What do you need to do and how will you
change?
3. Pitfalls – What challenges should you be aware
of?

Landscape – if this is the answer…
• Over 50% of pupils…
• 69% of MATs…
• Only 8% of MATs…

69
20
8
3
2-5 schools (69%)
6-10 schools (20%)
11-20 schools (8%)
21+ schools (3%)
The MAT Landscape

Why?
Discuss:
• What’s in it for you?
• What do you hope to achieve from
growth?
• How has your past growth worked well?
• What will success look like?

Why?
Discuss:
• What’s in it for them? (DfE/RSC teams)
• You will need permission to grow
• How will the DfE/RSC objectives benefit
from your growth?
• Why does this matter?
• What’s in it for them? (potential partners)

National issues for DfE/NSC
• Sponsors
• ‘We are not short of sponsor capacity’
• Where are they?
‐ Universities/independent schools/sixth form colleges
‐ Industry/commerce
‐ Existing MATS

Route map
Issues to consider when expanding:
• What do high performing MATs do well?
• How are we doing by comparison?
• Are our proposals appealing to (our) RSC?

Guidance July 2018
• Suggested questions to consider, three
themes:
1. School improvement and developing
people
2. Governance and risk management
3. Finance and resource management
• Tool ‘to facilitate developmental
discussions’
• Suggest use themes as guide to performance

Theme one: School improvement and developing
people
• Self-evaluation, knowledge of schools, vision and strategy
• Deployment of expertise, weaknesses, recruitment and
development
• Professional learning, development and understanding of
‘great teaching’
• Curriculum development, assessment and use of data

Theme two: Governance and risk management
• Expectations in GH and AFH?
• Is there a shared understanding of the vision and ethos?
Structures and
leadership
• Frequency of Board Meetings, SOD, knowledge
• Position on schools financial efficiency checks?
• Risk management at SLT level? What are the 3 or 5 greatest risks?
Accountability and
compliance
• Culture – open challenge?
• Does Board hold SLT to account?
Evaluation and
Challenge

•Integrated approach to curriculum and financial planning?
•Monthly management accounts and action?
Financial
governance
•Recruitment, appointment, induction of trustees
•Clerk. Expert advice on governance and compliance?People
Theme two: Governance and risk management

Theme three: Finance and school resource
management
35 questions!
• Vision and planning, oversight, skills, curriculum, staffing,
funding across schools, budgetary devolution and
procurement.
• Managing change – rationale for growth, risk, reserves and
contingency planning and handling schools in deficit
• Robust evidence-based decisions on salaries

Challenges/Growing Pains
What are the challenges you foresee for your
trusts?
• Knowledge
• Vision and strategy
• School improvement
• Governance and accountability
• Recruitment – people/governors/trustees
• Finance issues- now and future

Getting it right from start to finish
Exclusions masterclass

Introduction
1. The legal framework
2. Key issues
3. The exclusion process

Legal Framework
• Section 51A - Education Act 2002
• School Discipline Regulations, 2012
• Statutory guidance - Exclusion from maintained schools,
academies and pupil referral units in England (September
2017)

Key Issues
• Role of behaviour policy
• Need for clear evidence
• Need for training - senior
leadership teams, trustees and
governors

Exclusion Process
• Potential four stages for permanent exclusions
• Range of disciplinary penalties
• Golden thread of decision making – lawful, reasonable and
procedurally fair

Stage One – Head Teacher
• “ Any decision of a school, including exclusion, must be …lawful,
rational, reasonable, fair and proportionate” (para 6)
• Test for permanent exclusion (para 16)
• Investigation and relevant considerations (paras 17-25)

• Investigation to include pupil’s views -
where practicable
• Consider groups vulnerable to
exclusion and additional steps that
might need to be undertaken
• Impact of Equality Act, 2010
Stage One – Head Teacher

Stage Two - Governing Board
• Role is to consider:
1. The reinstatement of the excluded pupil by considering the interests
of the pupil, including circumstances of exclusion, and the interests
of the school community (63)
2. Whether the head teachers decision to exclude was lawful,
reasonable and procedurally fair (in light of the Head’s legal duties
and in light of the evidence presented)
• Draft and issue a sufficiently detailed decision letter

Stage Two - Governing Board
• Converting fixed term exclusions to
permanent exclusions
• Review of evidence
• Role of governors in Equality Act
issues

Stage Three - Independent Review Panels
• Review based on evidence that was, or should have been,
available to the Governing Board
• Decision – quash and direct, recommend, or uphold?
• Risk of £4,000 fine if they fail to re-instate the pupil after
a ‘quashing’ decision

Stage Three - Independent Review Panels
• Focus on Governing Board decision – a representative from the
Governing Board is required to be present to justify and/or
explain their decision
• The head teacher does not have to attend… but it can be useful
if they do
• Decision based on tests for judicial review

Independent Review Panel - Tests
1. Illegality – outside scope of the Governing Boards legal powers?
2. Irrationality – a decision that no reasonable Governing Board
could have reached?
3. Procedural fairness – was the Governing Board’s consideration
so flawed that justice was clearly not done?

Independent Review Panel - Tests
4. Lawful – Governing Boards decision making
5. Reasonable – consideration of evidence or lack of
evidence
6. Procedurally fair – was justice done?

Stage Four - Reconsideration by Governors
• Limited guidance available from Department for Education
• Must be conscientiously undertaken within timescales
• Format and governing board composition is within the
Governing Boards discretion

Finances
• Only funds payable following permanent exclusion – IRP fine and
any fee under an exclusion agreement
• Exclusion agreement must limit fee to an appropriate age-
weighted pupil unit for remainder of the academic year
• Any enhanced payment must be agreed in a separate written
agreement between the school and the local authority.

Active learning, evidencing outcomes, plugging skills gaps, exceeding current sector
expectations
Staff training

Staff training
• Why is it important?
• What is your current
approach?

Sourcing training
What steps do you need to take, in order to:
• Ensure the training will do what you need it to do?
• Enable you to measure the success of it?

Active Learning –
what is it?

Evidencing outcomes
• Signing-in sheets do not
measure anything…
• All about outcomes

Plugging the gaps
• Analysing the outcomes and
plugging gaps
what do you do?

Thank you
James Corbridge
HR Consultant
t: 0330 045 2167
e: james.corbridge@brownejacobson.com

Education Law Conference Exeter - Thursday 6 June 2019

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