Thursday, August 18, 2016

CADAP 2016 - Keynote Speaker - Patrick Walsh - Education Law

Patrick Walsh, ex Head of Principal Assn, presented on Education Law (Principal and holder of law degree). 

The law is a very fluid issue in schools, not a lot of case studies to go on. Every school is also a unique situation. 

The focus in schools should be on teaching and learning - often this is not the case -. Other high risk things take over - suspension, relationships, financial issues. 

10 years ago very few lawyers practicing  in education law, 25+ now. Parents seem to go to lawyer rather than go to school. Lawyers attending suspension meetings. New laws mean that students have jurisprudence, not school and board. 

52 Acts govern education - generally around compliance eg Section 23 Privacy Act, we need a Privacy Officer.  Important to know what the penalties are. 

We are a 'rights conscious societies' - bodies geared to ensure that the rights are complied to. For example the Ombudsmen has the ability to open investigation into any Principal or Board if presented by parents; Education Council, ERO. A really strong complaints policy will mean that few actually go to the Ombudsmen. 
There has been a growth major growth in litigation and the massive growth in 'social media' litigation! 
Students need to know the complaints policy as well. Really important that the students know to go through our student council at the moment as we have no student rep on the Board, as no Board. 

Apparently we can create 'by- laws' for the school - there needs to be a robust reason - why is this rule necessary for the running of a school. Why is it necessary for good order and governance? Hard to justify around hair colour, jewellery, puffer jacket etc!!!!  Schools have a right to set rules in consultation with the community. 

Staff - BOT can develop a code of conduct for staff, some Principals 'enforce' a code of conduct - which can be problematic. Is this a good idea - and aim for staff buy in as opposed to imposing something that is lawful but may not be successful eg staff and ties!!!

Case Law the use of precedence to inform education issues that get to court. Currently these cases do not seem to be in the public  knowledge - they tend to sit with the Ministry - provide a summary, set the precedent and advise action. Ministry has not done this yet.
Legal risk management is important - need for policies is essential. They need to check that the policies actually match the current law. Audit that the policies match the law - handy if you have a lawyer on the BoT. 
Legal literacy - really important that rushing into make procedural errors! Complex issues need advice! 
Copyright - not for your school but for anyone who uses your facilities!!!

Recent Case Law eg MvR vs Syms vs PNBHS (2003) - alcohol consumption - suspended and excluded. 
- Taken to court for judicial review. Invalid in law - cannot have policy that predetermined outcome and mitigating circumstances. Need 'weasel words' in policy eg 'maybe suspended' ! 
- Difficult for staff to understand that there cannot be a simple list of misdemeanours and outcomes. Maybe different outcomes for same offence. 
- BOTs may come to different decision than the Principal 
Bill of Rights has come into play a lot more -  - student's rights over rode the school's and teacher's rights here! Special needs of the student were not taken into account. 
NB - when a student presents with discipline we need to 'discover ' the cause and THEN investigate other options! 
Student hair length - St John's - was this by-law necessary - obviously not!!! 'Suspension disproportionate to the breach of the rule'.
St Bede's case - education lawyers believe judge intervened unnecessarily as NOT interfering with education of the students . This has created an unfortunate precedent for schools - all sorts of judicial reviews. SPANZ don't think this is good law and will challenge any further cases that rely on the precedent. Judicial Review - the right to review ANY decision that affects the rights of individual students. 

Schools are 'civil' cases. Students who deny any charge can be difficult - but do not have to prove 'beyond reasonable doubt' - more than 51%. Board can decide on 'balance of probabilities' which could be different from 'beyond reasonable doubt'. If 'suspending staff' MUST check with MOE that they will pay for reliever. 

Contract Law - in the world of 'self managing schools' it's important to follow sensible commercial practice. 
- don't pay before you get goods 
- buying businesses that are not key to school business 
- check who leases your properties - insurers need to be notified of who are additional users 
Nice to have a lawyer on a BOT ! 

Governance and Management 
Quote from Richard Harrison, 1993 - BoT and Principal should be consultative and co-operative ! More irony!!!

Employment Law 
- must have a fair and transparent process 
- competency - often fails because too much time gathering evidence - Employment RA checks the process, not the evidence - they do not know the standards - interested in that there has been a fair process 

Procedural Fairness - Competency 
- particularise concerns - need to be specific and details need to be clear 
- communicate concerns in a manner they understand - check with the employee 'do you understand what I say when .......' Onus is on us to explain concerns 
- set out the required standard - this is what you need to do 
- minimum of 10 weeks - unless gross incompetence - don't move immediately to dismissal 

- Support and Guidance - needs to be very clear that they know it is not appraisal 
Very difficult in area of workplace bullying due to subjective nature of complaint. 

Dismissal of Staff - judge steps into BoT shoes - if the judge was sitting here today, would they see this as a fair process. Double jeapordy - as a teacher does not just lose job, but also lose registration and career. Due process must be followed. Howick College good case - . It is important to ASK into mental health. 

Has the school contributed to the problem eg has the school contributed to the problem - by putting the staff member into a job there are not suited for!

- If you restructure to avoid going down the competency road - is that legal? Courts will investigate that you have genuine reasons for restructure OR just avoiding difficult people. 

- How do you avoid the 'roller coaster' effect? Competency, gets better, then goes backwards, competency.....
- is it a substantively reached the standard? Will they get there? 
- if there are multiple 10 weeks -  then it's misconduct - choosing not to maintain competency! 

Really important to ensure that appraisal is robust for teachers who are under competency. Attestation and appraisal need to match. The Principal has to check that the data provided by the S and G person. 

Procedural Fairness - Serious Misconduct of staff 
- never have a complete list
- disclose allegation at initial meeting - if admitted or substance becomes a disciplinary nature 'I must advise if I don't like the answers that you give me, I'll refer to BoT'
-  what support do we have to give to support at initial meeting - tension around being a 'good employer' - also complicated if there is a criminal investigation going on.
- Sect 66 of Ed Act - there is delegation of authority - Principal must have delegated authority from the BoT - eg conduct a Prima Facie investigation, discipline letters - generally not substantive inquiry 

Stress Claims - see the case here regarding workload and not being a good employer
There has been a rise in education related stress claims. Court requires: 
- unreasonable level of stress
- linked to a recoginisable medical condition 
- not related to out of work issues 
- did you know - identify staff who may be stressed - quiet, or angry or sick a lot - enquirer how they are coping in the job (do we need a stress register for Staff? ) 
- check the conditions 'industry standards' eg number of special needs in one class
- what can we afford to do in support - in our resources
- can invoke competency if stressed by incompetency 
- EAP - who do you chat to if stressed 
- SLT raising standards and expectations causes stress - leads to bullying - BoT needs to manage change 

Health and Safety + Students with Special Needs 
- programmes must be provided for all special needs 
- any child who presents with special needs has to be treated differently - how do we actually provide resources to deal with this? 
- MoE could be at fault if these not met! 
- what have you done positively to support the child with special needs (ie no additional support) 
- staff who have to manage these without support COULD create personal grievance if no extra support given in classroom 
- hazard register and RAMS forms should name and manage the BEHAVIOUR not the child 

Students committing crimes 
- if students commit a crime outside of school police currently have no obligation to notify school 
- social media impacts on jurisdiction - especially if victim and perpetrator at school - school  currently has no jurisdiction over these such events - what is the gross misconduct eg sharing video at school of offsite or out of hours offence
- If there is a strong nexus between student and school then there is a strong case for jurisdiction (close to school, in uniform, time of day) - Northcote College example student reinstated -
- if an event disrupts the running of the school, then we have jurisdiction over it - double edged sword - we can be responsible for everything  - Harmful Digital Comminications - Netsafe will be working to create how this will be investigated - students and parents can bring charges. 

Search and Seizure
- potentially dangerous areas include - searching electronic devices - not OK, you can ask them with parent present, or ask police investigate if criminal activity involved. 
- do not to treat confiscation as punishment eg taking a beanie! 
- does a breath test classify a breach? Or do we need to get an official 'non govt' agency to do this! Even if they sign a form agreeing to conditions. 
- schools are bound by BillofRights - even if parents consent
- random drug tests - a grey area around jurisdiction - lawyers on both sides 

Freedom of Expression -
- sections 72, 75, 76 of the Acts are rights of freedom of expression - this UK school in breach -
- section 5 states that these must be reasonable in a free and democratic society 
- schools are not adult communities - need rules and regulations - parents expect this too - being different is not recognised by the courts 
- section 14 - cultural and religious value - test the reason for the deviation - political reasons harder to justify 

Education Council 
- mandatory reporting of dismissal or competency proceedings  - in the preceding 12 months if dissatisfied or intending to investigate 
- Rule 9 serious misconduct - self explanatory 
- laptop agreement - some misunderstanding of the laptop agreements and use of the laptop 
- any act that discredits the teaching profession - balance between being role models and not being the 'moral police' of teachers - and the role of social media in this - do we need a national policy on this? Information on EdCouncil site on this . Must disclose to senior leader if any inadvertent access or pop-up. 
Principal prosecuted for not notifying BoT, police, not ensuring children safe.
Weight of opinion is that the charges against staff member SHOULD be disclosed to community. 

Health and Safety 2015
Education not intended as part of this but caught up, and seen as low risk. Would need to be a high level of systems failure if someone was to be prosecuted. 
Everyone who is involved in overseeing EOTC - seen as an officer. No insurance against the fine. So Board and Officer Liability. 

NB: Most of the youth who appear before Andrew Beecroft are students that been excluded from school! 

Principalship is about relationships 
- relationship with BoT is PARAMOUNT 
- appoint people who are good at the jobs that you are not good at doing 
- leading learning is the key - but all the other shit actually has to have time spent on them - finance, property, community support 
- get out into the classrooms - how do you know if you are not out there looking at what's going on 
- fight the battles that are student centred! 

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