FAQs from school and college leaders in Northern Ireland

The Department for Infrastructure has issued new interpretation and guidance to the Education Authority in respect of minibus driving requirements. The guidance affects paid drivers who are no longer able to drive a minibus on their D1 (not for hire or reward) licence, and will require a full minibus driving licence and Drivers Professional Competence (DCPC). Additionally, volunteers will also be affected as anyone who drives as a consequence of their employment, cannot be regarded as a volunteer and should hold a full minibus licence and DCPC.

In June 2017, the Education Authority issued a letter to all Principals clarifying the position in respect of minibus driving requirements. In short, the advice is that anyone driving a minibus should hold a category D1 driving licence. 

The Education Authority has confirmed that this guidance applies to all employees of the school and the requirements are effective immediately.

Regardless of whether or not driving duties are outlined in an employee’s contract of employment (incidental or integral to the employment), any employee who drives a minibus as part of their employment will be deemed to be paid drivers under the new guidance. Teachers and all other school employees will therefore be required to hold a full D1 licence and Driver Qualification Card (DQC) to drive a minibus.

The repercussions in respect of failure to adhere to the new guidance are significant. Any journey undertaken by staff who do not hold a D1 license will be considered illegal and may leave both the driver and the employer subject to legal proceedings and penalties. Additionally, any such breach of the requirements may result in invalidation of the school’s insurance policy.

Job-sharing arrangements are a special form of part-time work where a full time job is divided between two part-time workers. Whilst the teachers are part-time, they take joint responsibility for a full-time post and are regarded as a full-time unit. All teachers, including principals and vice principals, who have successfully completed 26 weeks continuous service at the date of application are eligible to apply for job share. 

A job share application may originate in one of the following ways:

• A teacher may apply to the board of governors to be considered for a job sharing arrangement.

• Two teachers may apply to the board of governors to share a post.

When assessing the suitability of the post, consideration should be given to:

• the needs of the school

• the welfare and educational needs of the pupils

A board of governors has a responsibility to carefully consider each application for job sharing, by application of the relevant objective criteria. In the past, case law has shown that industrial tribunals may regard a refusal to grant a request for job sharing as discriminatory unless there are clear and justifiable reasons for the decision which the employer can demonstrate to the satisfaction of the tribunal. In circumstances where a board of governors is considering the refusal of an application for job sharing, it is essential it seeks advice from the employing authority before notifying any teacher that a post is not suitable for job sharing. The overriding responsibility of the board of governors is to act reasonably in relation to applications for job sharing.

Where it is determined that the post is suitable for job sharing, the board of governors should advise the teacher that his/her application is accepted subject to a suitable partner being found. The board of governors should seek to identify a suitable partner by an initial trawling the post internally. In circumstances were a suitable job share partner is not identified through internal trawl, steps should be taken to advertise the post externally. If a suitable job share partner has not been identified by internal trawl or by external advertisement, the permanent teacher who applied to job share should be informed in writing that the reason not to accede to the request was the inability to find a suitable partner.

It can be difficult to organise a job share arrangement because of the need to find two workers who can do the job, who are capable of working together and who want to work complementary hours. The Department of Trade and Industry suggest that at best employers seriously consider requests for job sharing and where possible keep a database of those interested in entering job sharing arrangements.

If the teacher requests to work part-time, there is a duty on the board of governors to seriously consider such a request as a flexible working request. Individuals are eligible to make this request if they are an employee, have worked for 26 weeks continuously and not made a request during the past 12 months. However, whilst they may not have a statutory right to make a request, employees who have been employed for less than 26 weeks, agency workers and office holders may still wish to consider a request.

Before 5 April 2015, the right only applied to parents of children under 17, or 18 in the case of parents of disabled children or those caring for an adult. Now any eligible employee can apply to work flexibly for any reason. 

The teacher’s request should:

• be made in writing and dated

• state that it is an exercise of the statutory right to request to work flexibly

• explain the effect on the change on the employer and suggestions as to how this could be dealt with

• specify the flexible working pattern applied for

• state the date on which the change should become effective

• state if any previous application was made and the date that it was made

A flexible working request can only be refused on clear business grounds. The board of governors must let the teacher know of their decision in writing within 14 days following the date of the meeting with the teacher to discuss their request. In refusing a flexible working request, the board of governors must state the grounds on which they refuse, provide a sufficient explanation as to why the business ground for refusal applies in the circumstances and allow an employee the right to appeal.

The only business reasons a request can be refused are:

• burden of additional costs

• detrimental effect on availability to meet customer demands

• inability to re-organise work among existing staff

• inability to recruit additional staff

• detrimental impact on quality

• detrimental impact on performance

• insufficiency of work during the periods the employee proposes to work

• planned structural changes

In certain circumstances, a job sharing or flexible working application will not facilitate a teacher’s needs and the teacher may seek a temporary variation of contract. Any variation in contract would be short term, but may be for up to a period of one year with possible extension in extenuating circumstances. At the end of the temporary variation of the contract, the teacher will revert to his or her substantive contract.

An application for a temporary variation should follow this process: -

1. Be made in writing by the teacher to the Principal and outline the reason for the request and the period of variation sought.

2. The Principal should submit the request to the board of governors with their recommendation.

3. The board of governors should seek the advice of the Education Authority.

4. Any decision made must be based on clear and justifiable business reasons.

5. The teacher will be advised of the outcome in writing, detailing the reason if the request has been rejected.

6. The teacher will have 14 working days to appeal in writing to the Chair of the board of governors, setting out the grounds of appeal.

7. The appeal meeting shall be heard by the appeals sub-committee of the board of governors within 14 days of the teacher’s appeal. The teacher has the right of accompaniment at this meeting.

8. The outcome should be issued in writing to the teacher within 14 days of the meeting detailing the new working pattern if upheld, or reasoning for dismissal of the appeal.

9. There is no further right of appeal.

Article 5 of the Education (Northern Ireland) Order 1998 gives schools specific authority to detain pupils after the end of a school session without the parent’s consent, providing the following conditions have been met:

a) The principal must have previously determined that detention is one of the disciplinary measures to be used in the school and must have made that decision known generally within the school and taken steps to make it known to the parents of all pupils at the school.

b) The detention must be imposed by the principal or another teacher authorised by the principal.

c) The detention must be reasonable in all the circumstances, ie its use and duration must be proportionate to the offence and applied on a consistent basis, and appropriate regard must be given to the age of the pupil, any religious or special education needsthey may have, and, where necessary, to the parents’ ability to arrange suitable alternative transport home.

d) The parent must have been given at least 24 hours’ written notice that the detention is to be imposed.

The requirement of Article 5, however, of the 1998 Order only applies to pupils who have not attained the age of 18. Article 5 is based on the issue of parental consent which is not appropriate when the pupil has attained adulthood. In these circumstances, the school requires the consent of the pupil to undergo the detention in order to avoid issues of false imprisonment. Should the pupil refuse to provide such consent the school should consider further disciplinary measures, for example suspension for failure to comply with the approved punishment.

When completing a United Kingdom passport application it is necessary for the person acting as the countersignatory to certify, sign and date one of the photographs with the handwritten words “I certify that this is a true likeness of (give full name of applicant)” and also sign the application form. The countersignatory must hold a current British or Irish passport and be willing to provide their passport number on the application form. The Passport Office has advised that they will not be able to process the application without the countersignatory’s passport number.

The application form cautions “It is a criminal offence to make false statements to help someone get a passport. You should make sure that you check the form properly before you fill in this section. If you have made any false statements of this form, or if you know that the person applying has made any false statements on this form, you could be prosecuted and could go to prison. Our work includes checking that your details are genuine. As a result, we may need to contact you. You should not sign this form if you are a relative of the person applying.”

The Passport Office suggests that if the countersignatory is unwilling to give the applicant their personal details, the applicant should give them the completed application form, the necessary photographs, documents and fees and have the countersignatory complete the outstanding details, seal the envelop and return same to the Passport Office themselves.

The Director of Operations of the UK Passport Service has given assurances that the passport number is not of any value to anyone outside the passport service. It could not be used to confirm identity, for example, when opening a bank account or to obtain information.

If you feel that your personal details have been misused you should contact the Passport Office on 0870 521 0410 or visit www.passport.gov.uk

There is no requirement to provide your passport number when counter-signing applications for Republic of Ireland passports.

The ultimate disciplinary action is expulsion and such a measure should only be used in exceptional circumstances. The procedure governing expulsions is specified in the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 and Schools (Suspensions and Expulsion of Pupils (Amendment) Regulations (Northern Ireland) 1998.

A pupil cannot be expelled unless they have first served a period of suspension. Before a pupil can be expelled, there must be a consultation between the principal, the parent of the pupil, the chief executive of the Education Authority or someone authorised by him, the chairman of the board of governors and, in the case of Catholic Maintained Schools, the Director of the CCMS or someone authorised by him. A pupil can only be expelled by the expelling authority, the body who has ultimate responsibility for the decision depending on the status of the school. The expelling authority should be careful to ensure that there is no appearance of bias in its procedure for making a determination.

Schools have a duty in law to:

• teach drugs education, as part of the health education cross-circular theme

• have a drugs education policy, and publicise it in their prospectus

• inform the police where they believe or suspect a pupil to be in possession of a controlled drug. If the school is in doubt about the nature of the substance, the police should be informed

Fundamental in dealing with such an incident is the principle of ‘in loco parentis’, that is, schools must take steps reasonably expected of any parent to safeguard the well-being and safety of all pupils in their charge. As above, all schools should therefore draw up a policy outlining their procedures for dealing with drugs misuse. Agreed procedures should be in written form and clearly understood by and familiar to all staff, both teaching and non-teaching.

Article 3 of the Education (NI) Order 1998 as amended by Article 19 of the Education and Libraries (NI) Order 2003 requires school principals and board of governors to ensure that policies and procedures designed to promote good behaviour and discipline are pursued at the school. It is therefore recommended by the Department of Education that all school policies on discipline should include a clear statement of the schools attitude to illegal drugs and of the disciplinary measures which will be applied in drug related incidents. All schools should make it clear they are committed to tackling drug misuse and that any instances of possession, use or supply of illegal drugs on school premises will be regarded with the utmost seriousness.

The Department of Education states that it would not be appropriate to prescribe centrally specific sanctions which should be applied to drug-related incidents. Principals must retain responsibility for deciding how to respond to particular incidents, and taking into account all factors including the age of the pupil, how many pupils were involved, evidence of peer pressure. The Department recommend schools develop a repertoire of responses incorporating both counselling and sanctions, such as suspension or in extreme cases expulsion, which reflect the different kinds of offences. The Department of Education also advises that a school should appoint a designated teacher for drugs who should be a senior member of staff, but not the principal. However, the principal will have the ultimate responsibility for dealing with it appropriately. The guidance also states that emergency first aid procedures should exist and all members of staff should be aware of them as safety of the pupil is a paramount consideration.

There is no legal duty that requires school staff to administer medication. Principals, Vice Principals and teachers are not contractually required to administer medicines to pupils. This is a voluntary role, although some non-teaching staff are employed on contracts, which require them to carry out certain medical procedures. Staff who provide support for pupils with medical needs, or who volunteer to administer medication, need support from the Principal and parents, access to information and training, and reassurance about their legal liability. 

The employer is responsible for ensuring:

• the school has a policy for supporting pupils with medication needs and managing medication

• the school’s insurance arrangements provide full cover for staff acting within the scope of their employment

• it is made clear to staff at all levels what their legal responsibilities are (including where there is no legal responsibility on staff to administer medication in schools); the extent of insurance cover provided for staff acting within the scope of their employment; what cover is provided for staff who provide specific medication support; and where the liability is likely to lie in the event of legal action

• correct procedures are in place 

• accurate records are kept in the school 

• that staff who volunteer, or who are recruited for the purpose of supporting pupils with medication needs, receive appropriate training

The employer is also responsible, rather than the employee, in the event of legal action over an allegation of negligence.

Schools should hold appropriate medical records of all pupils detailing any relevant medical history, including allergies and any medication that pupils may require on a daily basis or in times of emergency. Based on such records and the needs of its pupils, the school should take appropriate steps in order to train staff in the administration of such medicine.

The Principal should initially consult the school’s staff disciplinary procedure. 

After initial investigation and, depending on the allegations, suspension may need to be considered. In general terms, circumstances where suspension properly occurs include:

• where a child or children is/are at risk

• where the continued presence of the teacher would place a child / children at risk

• where the allegations are so serious that dismissal for gross misconduct is possible

• where suspension is necessary to allow the conduct of the investigation to proceed unimpeded

It may be necessary for the involvement of the Police Service of Northern Ireland. 

Written confirmation of a precautionary suspension should be issued within one working day and include details of the allegation, the reason for  suspension,  likely next steps and  details of the Staff Welfare Officer. 

It is important to remember  a precautionary suspension is not a disciplinary penalty and its imposition is not intended to imply any decision about the outcome of the disciplinary process. It is recognised that in applying precautionary measures, the Principal and employing authority has a continuing duty of care to any member of staff who is subject to an allegation. 

Additionally, before any decision is made to suspend a teacher, it is important to note that recent case law states that suspension should not be the default option and an individual should be suspended only if there is no reasonable alternative. See Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB)

All dismissal and disciplinary procedures together with statutory grievance procedures should be in line with the Employment (Northern Ireland) Order 2003. Further information may be obtained from the Labour Relations Agency.

There are times when the investigation of an incident of indiscipline will entail a search of pupils or their belongings. Those conducting the search should always obtain the pupil’s consent before a search. Staff should carry out this search in the presence of the pupil and another adult witness. 

If a pupil is physically searched without his or her consent, the person conducting the search could be prosecuted for assault and sued for damages for trespass to the person. A teacher may be able to raise a defence under Article 4 of the Education (NI) Order 1998 if the reason underlying the search was to prevent the pupil committing an offence or causing personal injury or damage to property. Similarly, consent should be obtained for searches to property otherwise an action could be taken for trespass to property.

If the pupil refuses to give his or her consent to a search, schools will have to resort to other disciplinary sanctions such as suspensions. If the school believes that the pupil is in possession of something which is illegal or dangerous or which has been used to commit a crime, it should always inform the police.

The Principal should initially look to the members of staff’s contract of employment in relation to the period of notice required. In circumstances where sufficient notice is not provided, the school should immediately notify the member of staff and advise that sufficient notice as per the terms of the contract of employment is required. If the member of staff is unwilling to serve the requisite notice period then the school may seek redress, for example recoupment of salary.

However, realistically, there is little that can be done to prevent the member of staff from not serving the requisite period of notice. The school will be entitled to notify the staff member that such behaviour will be noted on their employment record, which may appear on any future reference provided by the school.

The term ‘parent’ includes any person who is not the parent of the child but who has parental responsibility for the child or has care of the child. This includes both parents where they are married at the time of the child’s birth, step parents where they have care of the child, an unmarried mother or unmarried father if he jointly registers the birth of the child with the child’s mother (ie is named on the birth certificate), an unmarried father where there is a parental responsibility Order from the Court or a formal agreement with the mother, and any person who has been granted a Residency Order, appointed a guardian or has an Emergency Protection Order, Parental Order, or Adoption Order made in their favour. Parental responsibility gives rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. This includes the entitlement to make all major decisions about a child, such as name, education, place of residence, and medical treatment.

In short, the legal position that applies to  changing a child’s surname is: 

• Where only one person has parental responsibility for the child, this person may legally determine and change a child’s name without any permission or consent. 

• Where two or more people have parental responsibility for a child, the name of the child can only be changed if all persons having parental responsibility consent or agree.

• Where a Residency Order is in force in respect of the child, the child’s name can only be changed with either written consent of every person with parental responsibility, or the leave of the court.

• In any other situation, an appropriate court order is required. 

The school cannot unanimously change the surname of one its pupils without official documentation. Such documentation will verify that a person with parental responsibility has followed the correct legal procedure to change a child’s name. It is appropriate to ask the parent who is requesting that a child’s name be changed on the school records to provide a letter of consent from anyone else with parental responsibility or a court order. In such circumstances, a school should refuse to make any change in its records unless there is evidence that consent has been given.  It is crucial that schools keep full and accurate personal details of all its pupils. For the purposes of official records, only the name that appears on the child’s birth certificate may be used, for example official school records and entries for examination. For pupils who reach the age of 18, there are of course legal means to officially change one’s name, however, should this occur, the school should be advised accordingly and request sight of the relevant documentation proving same before amending any official records.

Martial disputes are, of course, a difficult time for all those involved and the school should attempt to discuss all issues regarding the request for the change of name with both the pupil and the parents as defined above. If applicable, special consideration should be given to the wishes of the child.

The Race Relations (Northern Ireland) Order 1997 as amended by the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 and the Race Relations Order (Amendment) Regulations (Northern Ireland) 2009 prohibits discrimination in education at all levels and, in addition, places a general duty on educational bodies to ensure that their facilities are provided without racial discrimination. Schools, colleges and other educational establishments cannot discriminate on racial grounds. It is unlawful for the body responsible for an educational establishment to discriminate: 

• in the terms on which it offers to admit a person to the establishment as a pupil  

• by refusing or deliberately omitting to accept an application for admission by a pupil

• in the way it affords a pupil access to any benefits, facilities or services, or by refusing or deliberately omitting to afford such access, or

• by excluding a pupil from the establishment or treating a pupil unfavourably in any other way

It is unlawful for the body responsible for an educational establishment to subject to harassment:

•  a person who applies for admission to the establishment as a pupil, oror 

•  a pupil at the establishment

The Order places a general duty on the responsible bodies for educational establishments in the public sector to ensure that facilities are provided without racial discrimination (Article 20). However, the Order permits any act done to allow persons from a particular racial group access to facilities and services to meet their special needs with regard to education, training or welfare, or any ancillary benefits.

The Legislation relates to ethnic minorities and also the Irish travelling community. Principals should note the Irish travelling community are specifically protected by the legislation for example if an admission criterion specified a particular catchment area and the board of governors refused to admit the child because of their nomadic background, the child may be able to establish a case of unlawful discrimination.

In June 2001, the Equality Commission, with the endorsement of the Department of Education, launched the document Racial Equality in Education – a Good Practice Guide. School managers would be advised to read this guide, specifically the sections regarding admissions, suspension and expulsion, special educational needs and racist incidents and racist bullying. However, the following is suggested:

• Equality of provision should be at the centre of school policies that apply to pupils. These policies will probably include admissions, discipline, suspension and expulsion, bullying, uniform and special education needs.

• Policies should be regularly reviewed and monitored to ensure that procedures are neither directly nor indirectly discriminating against ethnic minority groups.

• All members of staff should be made aware of relevant Articles of the Race Relations (NI) Order 1997 and the Human Rights Act 1998. In order to help develop an antic-racist ethos in the school as a whole, the possibility of anti-racism should be considered for staff development days.

• Incidents of racist and sectarian bullying should be taken very seriously. Schools should have in place a separate anti-bullying policy and this should contain a section on racist and sectarian bullying. It should be recognised in the policy that staff can bully pupils and vice versa, pupils can racially bully members of staff. The anti-bullying policy and procedures should be made known to all pupils, parents and staff on a regular basis.

• Where language support is needed, links should be made with the Education Authority’s Support service.

• As the Racial Equality in Education – a Good Practice Guide suggests it is not just enough for schools to obey the law, a more holistic is needed where a school’s ethos reflects and celebrates the diversity of its pupil population.

All schools should therefore have a Race Relations Policy and under the Freedom of Information Act 2000 and Data Protection Act 1998, same must be disclosed.

Under the procedure for appeal as set down in the Schools (Expulsion of Pupils) (Appeals Tribunals) Regulations (NI) 1994 failure to allow a pupil to provide representations may be grounds for reinstatement.

Where the pupil has been expelled the principal shall immediately give written notice to the parent of the pupil of his or her right to appeal the decision, the time limit for lodging an appeal and the place were an appeal may be lodged. The Education Authority is required to make arrangements for an appeal against any decision to expel from a grant-aided school in its area. The parent, or the pupil himself where he has attained the age of 18, may appeal to this appeal tribunal against a decision to expel.

A parent or a pupil who wishes to appeal the decision must give written notice in writing setting out the grounds on which the appeal is made. There are no specific grounds of appeal, although an important factor will be whether the school’s procedures were properly followed. The person appealing has the right to make written representations to the tribunal and to appear and make oral representations. The tribunal may also allow the appellant to be accompanied by a friend or be represented. The authority which has expelled the pupil is also entitled to make written representations and to attend and make oral representations. In controlled schools, the board of governors may also make written representations and a representative of the board of governors may appear and make oral representation. Otherwise, the appeal is heard in private.

In considering the appeal, the tribunal must have regard to all the circumstances of the case, and in particular three things:

• Any representations made to it by the parent, pupil, expelling authority or the Education Authority.

• Whether the procedures in relation to the expulsion of the pupil from the school were properly followed.

• The interests of other pupils and teachers in the school.

The appeal is determined by a simple majority of votes cast. The appeal tribunal may dismiss the appeal or allow the appeal and direct that the pupil be re-admitted to the school. If the tribunal directs the pupil be re-admitted to the school, the board of governors of the school must comply with the direction. The decision is communicated in writing to the appellant and to the authority, which took the decision to exclude.

Secondary school pupils who undertake voluntary work or work experience in primary schools do not require a Disclosure and Barring Service check, however, schools should ensure the pupil is suitable for the placement in question.

Much of the educational reform of the last decade has been designed to increase the say of parents in decisions made about their children’s schooling. The introduction of the common curriculum and the policy on ‘open enrolment’, coupled with a series of measures aimed at giving parents greater information about their child’s school have radically changed the expectations of parents and schools have been forced to become more transparent.

However, when a parent is wasting a principal or member of staff’s time, the parent should be informed and asked to stop. Where the parent becomes aggressive or abusive, the police should be informed.

In all child-related decisions, the welfare principle must inform the handling of all cases. The child / pupil must be listened to and his / her concerns taken seriously. The possible risk of harm to children poised by the member of staff named in the allegation needs to be effectively evaluated and managed. 

In some cases, this will require consideration of suspension of the teacher as a precautionary measure. A continuing duty of care by the Principal or Employing Authority exists to the member of staff subject to the allegation and any allegation should be dealt with thoroughly, fairly, efficiently, consistently and timely, in a way that provides effective protection for the child / pupil and takes into account the rights of needs of the individual under investigation.

The Department of Education recommends the following steps for dealing with an allegation:

1. The Lead Individual must not interview those directly involved or any witnesses, but should establish the facts, including : 

• the general nature of the allegation

• that the allegation is of a child abuse nature

• when and where the incident is alleged to have occurred

• who was involved

• whether any other persons were present

• if school records are likely to be able to support / contradict the allegation

• any history of similar allegations

2. Seek advice from key agencies including the CPSSS, Employing Authority, Social Services and the PSNI.

3. The BoG, the Chair or the Principal, on the basis of the advice sought from the agencies, can impose the following possible outcomes:

a) Precautionary suspension not appropriate and matter concluded

b) Allegation addressed through relevant Disciplinary Procedures where consideration given to requirement for precautionary suspension. 

c) Precautionary suspension under child protection imposed

d) Alternatives to precautionary suspension imposed

4. Complete the investigation.

5. Issue outcome: return to work or termination of employment. If on conclusion the teacher’s employment is terminated, the Principal or Lead Individual should consider whether a referral to the Disclosure and Barring Service (DBS) is required. 

Principals are referred to Circular 2015/13 – Dealing with Allegations of Abuse Againat A Member of Staff which should be read in conjunction with Circular 1999/10 - Pastoral Care in Schools Child Protection and Education and Training Inspectorate - Evaluating Pastoral Care (1999).

There is no statutory requirement for the Education Authority to provide supervision on school buses. However, failure to provide supervision in certain cases may be considered negligent and thus give rise to a civil action for damages if a child is injured on a bus where there is no or inadequate supervision.

The courts have held that an education authority should provide whatever level of supervision that is appropriate, bearing in mind the children’s ages and standard of behaviour. For example, supervision should be provided where there are a large number of young children or children with learning disabilities being transported or where it is known that a certain group of children are particularly boisterous or undisciplined.

The legislation does not give the Education Authority the power to impose sanctions for misbehaviour, but the education authority can inform the child’s school in the hope that it may take disciplinary measures. The headteacher’s power to discipline extends to incidents occurring outside the school premises. This is generally accepted to include the journey to and from school.

Headteachers are entitled to take disciplinary action against pupils if there is a clear link between the misconduct in question and the school’s expectations. Where pupils wear a recognisable uniform, the link with the school is even stronger. In serious cases of indiscipline a headteacher could suspend the pupil for the misbehaviour.

This is an issue which the Health & Safety Committee (with named governor) of individual schools need to carefully address. The Workplace (Health, Safety & Welfare) Regulations (Northern Ireland) 1993 require employers to organise safe transport routes.

Schools should be concerned about where pupils move, and the movements of parents’ cars, staff cars and delivery vehicles. They need to ensure safe access for everyone. Many schools already have adequate policies in place. However, there have been a number of recent court cases where accidents have taken place in school car parks and the schools were subsequently held to be negligent.

Schools should formulate a policy based on an adequate risk assessment. This should take into account the kinds of vehicles (including bikes) which access school car parks and traffic routes within school grounds, the risks they may pose to staff, pupils and other persons, and the control methods which should be in place to reduce the risk of accidents. Such a policy is mostly about separating persons and vehicles. The most important matter is to make sure that pupils, parents and other users are regularly made aware of the policy.

Issues which schools may want to address include: vehicle speed, signposting, post-16 pupils and use of vehicles to school, identified parking areas, delivery van routes, dustbin areas, entrances and their use, storage facilities for helmets and locks, monitoring of the policy, action when poor behaviour is identified, and review of the policy.

For further information, visit Health & Safety Executive (Northern Ireland) (www.hseni.gov.uk)

The Department of Education, Northern Ireland has not released any guidance in relation to this subject to date. The following is an amalgamation of general advice from the Department for Education and Skills, Publicity Division and advice offered from the teams responsible for child protection and for safe use of images on the internet and in other media.

Some of the potential risks of photography and filming at events include:

• Children may be identifiable when a photograph is shared with personal information.

• Direct and indirect risks to children and young people when photographs are shared on websites and in publications with personal information.

• Inappropriate photographs or recorded images of children.

• Inappropriate use, adaptation or copying of images.

Schools should develop a photography policy to use for images of children and young people that are going to be used in publications, websites and social networking sites. The policy can also be used to help children, parents, staff and volunteers understand how photographs can be shared more safely.

Providing the name and photograph of a pupil either in written, website or video format allows for the possibility that people outside the school might identify and then contact or attempt to contact pupils directly. Steps should be taken to reduce the risk of inappropriate and/or unsolicited attention

Close-up photographs of individual children should be avoided where possible and, instead, general shots of classroom or group activities should be used. Careful consideration as to whether there is a need to give the child’s full name. Personal details such as email/home addresses and telephone numbers should not be used.

It is acceptable practice, in normal conditions, to give the first name of a pupil and the name of their school as this should not give any information that is not easily accessible from other sources. Of course, in some cases, pupils may wish to be associated with the image (ie if the subject matter is such that it reflects well on them or their school). In such cases, it may be harder to include only a first name. In these circumstances, issues such as whether the image is to be publicly available or only available to a ‘closed’ audience should also be considered. There may also be circumstances in which the use of false names is justified.

Only images of children in suitable dress should be used, for example school uniform. Children can however be identified through logos or emblems on sweatshirts. Sometimes it may be necessary to airbrush or ‘fuzz out’ the relevant part of the image. It may also be inappropriate to use images or footage of pupils doing PE even if the school and/or pupils are not identified.

A broad rule of thumb is:

• if the pupil is named, avoid using their photograph

• if a photograph is used, avoid naming the pupil

Parents’ concerns about the use of their children’s images in publications, or recordings/pictures taken for examination purposes (eg PE, media studies, drama, dance) may be allayed by reassurance about the limited and controlled audience. In all circumstances, the parent’s permission for the use of an image of their child should be obtained and its purpose explained.

In the matter of R -v- Head Teacher and Independent Appeal Committee of Dunraven School, ex parte B (2000), the Court of Appeal held that where the behaviour alleged would constitute a criminal offence, the standard of proof to be applied by the headteacher/committee, should not be the same as in the criminal courts, where guilt must be proved ‘beyond reasonable doubt’. The standard of proof to be applied is the balance of probabilities, ie if it is more probable than not that the pupil did what he or she is alleged to have done, the head teacher may exclude the pupil.

However, the more serious the allegation and thus the possible sanction, the more convincing the evidence substantiating the allegation needs to be. This is not the same as requiring the criminal standard to be applied but it does mean that when investigating more serious allegations, headteachers will need to gather and take account of a wider range of evidence in determining whether it is more probable than not that the pupil has committed the offence.

Article 4 of the Education (NI) Order 1998 provides the power of members of staff to restrain pupils. The Article permits a member of staff of a grant-aided school to use, in relation to any pupil at the school, such force as is reasonable in the circumstances to prevent a pupil from:

• committing an offence

• causing personal injury to, or damage to the property of, any person (including the pupil himself),

• engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among any of its pupils, whether during a teaching period or otherwise

The right of a member of staff to use reasonable force in the circumstances described above applies to teachers at the school and to any other members of staff, who, with the authority of the principal, have lawful control or charge of pupils.  This might, for example, include classroom assistants, midday supervisors, caretakers or voluntary helpers accompanying pupils on school visits or holidays. The key issue is that any person other than teachers must be specifically authorised by the principal to supervise pupils and therefore to have power, where necessary, to use reasonable force.

To be entitled to ordinary parental leave, a teacher must have been continuously employed for one year under a contract of employment and be absent from work for the purposes of caring for a child for whom she or he has parental responsibility. You will not be entitled to ordinary parental leave as an agency teacher unless you are employed directly by your agency and have at least one year’s continuous service with the agency. 

From 5 April 2015, you may take ordinary parental leave any time before your youngest child’s 18th birthday. 

You are entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday. The limit on how much ordinary parental leave each parent can take in a year is four weeks for each child (unless the employer agrees otherwise). There is no statutory right to be paid during parental leave, and whether this leave is paid is entirely at the school’s discretion.

The notice period for ordinary parental leave must normally be given to the school at least 21 days before the date on which leave is to commence. The school may have power to postpone leave in certain circumstances.

Shared Parental Leave (SPL) enables eligible teachers to choose how to share the care of their child during the first 12 months of birth or adoption for a period of up to 50 weeks. The purpose of SPL is to allow parents a greater degree of flexibility in planning how best to care for their child.

The teacher must share the main responsibility for the care of the child at the time of the birth/placement for adoption. Additionally, to qualify for Shared Parental Leave, a teacher must: 

• Be entitled to Statutory Maternity Leave/Adoption Leave and/or Statutory Maternity/Adoption Pay or Maternity Allowance.

• Have ended or given notice to their employer to reduce any maternity / adoption entitlements (‘curtailment notice’). 

• Have been employed at the start of the period of SPL.

• Have a minimum of 26 weeks service by the end of the 15th week before the expected due date / matching date. 

• The teacher’s partner must have in the 66 weeks prior to the child’s expected due date/matching date have worked for a minimum of 26 weeks and in addition, earned an average of at least £30 (this may rise annually) a week in any 13 of those weeks (employment and earnings test).

Teachers will be required to give notification to their Principal/school of their eligibility and intention to take shared parental leave at least eight weeks before they can take any period of shared parental leave.

This arrangement mirrors a suspension which may be defined as a temporary exclusion from school, which may only be enforced by the Principal. Schools cannot avoid their obligations under the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 and Schools (Suspension and Expulsion of Pupils) (Amendment) Regulations (NI) 1998 by calling a suspension something else such as “sending the child home”. Any period during which the school refuses to provide a registered pupil with an education in its premises is arguably a suspension.

Where a pupil is suspended, the Principal must immediately give written notice of the reasons for the suspension and the period of suspension to the parent of the pupil, the Education Authority and, the chairman of the board of governors and in the case of Catholic maintained schools the local diocesan of the office of the CCMS. The principal must also invite the parents (or pupil if aged 18) to visit the school and discuss the matter.

The Disability Discrimination Act 1995 made it unlawful for service providers to treat disabled people less favourably for reasons related to their disability and introduced the concept of reasonable adjustments. This legislation is the basis for all agencies having to ensure that their practice offers the same level of safeguarding to disabled as to non-disabled children. The Disability Discrimination Act 2005 went further and required public bodies to promote disability equality. 

In September 2006, the Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO) came into effect. SENDO extends protection from disability discrimination to people being educated in Northern Ireland. It protects disabled people from discrimination by schools, institutions of further and higher education and general qualifications bodies. It also strengthens the rights of children with special educational needs to be educated in mainstream education. 

The code applies to:

• all schools in Northern Ireland 

• all bodies in Northern Ireland responsible for providing education(eg the Education Authority, school boards of governors and proprietors of non-grant-aided schools)

• all pupils and prospective pupils under 16 years-old who are disabled

SENDO provides the following protection:

1. makes it unlawful for schools to treat pupils with disabilities less favourably than other pupils in all aspects of school life, without lawful justification

2. places a duty on schools to make ‘reasonable adjustments’ so that pupils with disabilities are not put at a great disadvantage compared to pupils who do not have disabilities (however there is no duty to remove or alter physical features of premises or to provide auxiliary aids and services – although such things might alternatively be provided under a Statement of SEN issued under the Education (NI) Order 1996 – see above)

3. places a duty on the Education Authority and schools to plan strategically and make progress in increasing accessibility to schools’ premises and to the curriculum and in improving the way in which written information is provided to pupils with disabilities

Further information is available from the Equality Commission for Northern Ireland (www.equalityni.org) or telephone 02890 500600.

Under Section 3 of the Education (Northern Ireland) Order 1998 schools have a duty to promote good behaviour and discipline on the part of pupils. This duty lasts from the moment they leave home to go to school until they arrive back home after school. However, there is a difference between ‘being responsible for pupil’s behaviour’ and ‘taking steps to combat harmful behaviour’. Headteachers may take disciplinary action if there is a clear link between the misconduct in question and the school’s expectations. The fact pupils may wear a recognisable uniform makes the link with the school even stronger.

When pupils travel on buses to and from school, the headteacher is empowered to discipline pupils who have misbehaved as the school’s name may be brought into ill repute.

When pupils take part in organised school activities of any kind (including activities that appear to have been organised in the school’s name, such as an end of year ball), school staff should supervise the activity for the school according to the school’s standards and codes of conduct. Sometimes schools seek to disassociate themselves from an event. However, a simple disclaimer will not be adequate, as any staff present could not avoid responsibility for what happens at the event. To avoid association, the event must be totally managed outside the auspices of the school and parents should be told that the event is not a school event.

If an offence takes place when a pupil has just been excluded, then they are not receiving education because they are not qualified for full-time education. In such cases, the police would be involved and it would be inappropriate for the school to discipline the pupil further.

When a school does not have charge of its pupils, it does not have a general duty either to its pupils or to anyone else to police its pupils’ activities. Clearly, an incident at someone’s home party is the responsibility of the parents, and where criminal or civil offences are concerned, the police.

Schools are entitled to ban mobile phones on their premises. There are reasons for and against doing so.

If schools are to allow phones to be brought into school, they must formulate a clear policy on their permitted use and the consequences of breaking the rules and pupils must be advised of the risks of online technology. The Department of Education Circular No 2016/27 focuses on the critical role of the school in safeguarding and educating its pupils on online safety. Online technology enables us to learn, explore and connect with each other, however, with these benefits comes and increased risk, especially to young people. According to the DE Circular 2016/27, it is the school’s role to: 

• raise awareness of risks online

• highlight the impact of behaviour when engaging with online technologies

• educate pupils on how to act appropriately and how the stay safe online

• ensure there is a reduced risk of pupils accessing harmful and inappropriate digital content

The school’s actions on and governance of online safety must be reflected clearly within the school’s safeguarding arrangements and online safety policy.

Problems associated with mobile phones include distracting ring tones, calls taken by pupils during lessons, the use of phones to record classroom interactions, damage claims and police searches for stolen goods. 

However, parents may object to a ban on the grounds of safety during travel to and from school and for emergency use. There is also an issue of parents’ access to their children during school.

If mobile phones are confiscated, they should only be confiscated until the end of the day and due care should be taken with them until then. 

Some schools have successfully banned mobile phones and have found adequate support from parents for such action. Such a policy needs constant monitoring. Many schools have reported that they have had to reassure parents about alternative ways available for ringing home in emergencies. There may also be an issue about the use of mobile phones by staff when a school policy for pupils has been written; young people will soon ask for justification if the rules differ greatly.

If cyber-bulling is found to have occurred in school, the school’s bullying policy should be consulted immediately. Moreover, the police service of Northern Ireland may need to be involved. Legislation may provide protection from cyber bullying under the criminal law in Northern Ireland under the Protection from Harassment (NI) Order 1997, Malicious Communications (NI) Order 1988 and the Communications Act 2003.