By : John McKendrick
Date : 23rd Jun 2009
This paper deals with the legal requirements faced by independent schools with regard to explusions.
1. In context.
Expulsion from school is and always has been a stigma.
The law has long recognised independent school contracts involve the regulation of discipline. Contractual terms can be either implied or express between the school and the parents.
Increasingly head teachers, governors and bursars must be aware of the relatively demanding duties upon them to draft appropriate discipline policies, promulgate the same policies and implement them with due regard for fairness.
Within this context awareness of the nuanced difference between the increasingly used “required withdrawal” and outright expulsion /exclusion is required.
2. Promulgation of Behaviour Policy
All independent schools should have a behaviour policy and this now has a statutory underpinning: regulations 3 (d) and 6 (2) (e) of the Education (Independent School Standards) (England) Regulations 2003 state independent schools must make available, if requested by a prescribed person, “particulars of the school’s policy on and arrangements for admissions, discipline and exclusions.”
The Regulations also oblige schools to maintain a record of the sanctions imposed for “serious disciplinary offences” (Reg. 3(9)).
This should be a clearly worded guide permitting parents and pupils an understanding of what standards of behaviour are expected of them, the sanctions for breach of those standards and the manner in which sanctions will be implemented.
The law has long recognised this policy must be promulgated amongst the pupils and their parents. In Price v Wilkins (1888) 58 LT 680 the proprietor of an independent school brought proceedings against a parent for unpaid school fees, after the pupil’s expulsion. The court held the contract between the school and the parents was to provide the pupil with board and education for the relevant period of time (one term) and the school was at liberty to enforce the school rules in relation to the pupil. The court explicitly made reference, however, to the fact the school could enforce those rules or “such of them as were known to the defendant.” This early authority appears to suggest action in relation to school rules not dissembled between the parties may not be incorporated into the contract.
Caution is required in relation to the cumulative effect of many small incidents of poor behaviour. Does the behaviour policy permit extreme action in regard to these types of behaviours?
In Gray v Marlborough College  EWCA Civ 1262 the Court of Appeal considered this very question. The Court was forced to rely upon the term of the contract, not the behaviour policy, to conclude it was communicated to the parent that the cumulative effect of minor behaviour was sufficient to ground the head’s decision to require the withdrawal of the pupil. Clause 6 (a) of the contract stated:
Removal at the request of the School. Parents may be required during or at the end of term to remove the pupil without refund of fees temporarily or permanently from the school if after consultation with a parent the Master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil in the judgment of the Master is unwilling or unable to profit from the educational opportunities offered and in any such case removal is considered to be warranted.
What then comprises adequate consultation?
The duty to consult lies with the school and most certainly with the head teacher. Further, the head must consult with the parents and with the pupil. The more difficult question to answer is in relation to what, must the consultation take place? In Gray supra counsel for the claimant argued, because the pupil was required to be withdrawn because of the cumulative effect of minor poor behaviour, each and every allegation of poor behaviour should have been properly presented to the parents to allow them the opportunity to consider the allegations made against their son. This submission suggested consultation required the School to particularise each and every allegation of poor behaviour with some form of supporting documentation to allow the parents to challenge the factual basis of the incidents alleged against their son. The Court of Appeal concluded:
There may be circumstances in which fairness could require, before the making of a decision under r 6 (a) [required withdrawal] some form of particularized complaint or complaints accompanied by documentary material and, possibly, even a meeting in the nature of an informal hearing. However, the judge in my view rightly held that the circumstances did not require any more by way of forensic aids than the College had already provided here……. The Master’s judgement turned on a course of persistent, deteriorating lack of attention by Rhys to work and on an increase by him in defiance of, or inability to comply with, the disciplinary regime of the College. The many aspects and incidents making up this pattern were well recorded and broadly communicated to Mr Gray…….it was enough for the College to consult with Mr Gray in the sense of giving him adequate and timely information of the problems and their possible consequences and an opportunity to respond to, or deal with, them…
More generally speaking the court recorded several tests for consultation to be regarded as sufficient, which included: i. it should be tailored to the practicalities of the situation; ii. it may be constrained by urgency; iii. earlier discussions/consultation should have afforded interested parties with the opportunity to express views and make an informed view; and iv. the extent to which opportunities to express a contrary view have not been taken up.
It is inherent from the above dicta consultation in relation to an exclusion will demand more than what is outlined above and if the exclusion relates to a serious incident, consultation will mean a clearly particularised letter outlining the complaint made against the pupil. Fairness will also demand an oral hearing in most likelihood and this is considered below.
4. Applicable law: what is fairness?
The general principle of administrative law, which applies to the decision of public bodies (independent schools are not public bodies) demands that the requirements of fairness and natural justice are obeyed when a decision is made.
In R v Fernhill Manor School ex part B  1 FCR 146 the court held, albeit obiter dicta, that:
I hope that any publicity which this case may attract may draw to the attention of those who are responsible for the government of independent schools to the need to have in place procedural rules designed to ensure that pupils receive fair treatment in accordance with the principles of natural justice, which are sometimes called fair play in action, if there is any question of their being expelled.
Such bland statements of the law offer little guidance to head teachers, however.
In Gray the Court took some time to consider what fairness requires in the context of an independent school where the rights and obligations of the parties are regulated by contract and not, as in the maintained sector, by way of statute. The Court was at pains to establish the state has imposed a more demanding (or in the Court’s words: “more prescriptive”) regime for fairness in relation to the maintained sector. The use of the word prescriptive may hint at the fact the duty with regard to fairness between the independent and maintained sectors is not as wide as may first be thought.
The court was clear the duty to act fairly was implied by way of the contractual terms and of course went beyond the express contractual term to “consult”. The court made clear, as the duty to act fairly did not arise from statute but from contractual obligation, self-evidently, the nature of the bargain was relevant; i.e. the nature and context of the contract between the school and the parents. The Court took into account the following factors:
• Parents have a choice to opt for the independent sector.
• Parents are guided by the expectation of what the school will provide.
• Schools also require from pupils and their parents certain expectations.
The Court went on to consider the necessary balance between imposing the prescriptive aspects of the state sector and on the other hand the nature of the contractual bargain. The Court flirted with the idea as recognised by Sedley LJ in R v Headteacher and Independent Appeal Committee of Dunraven School ex parte B  EWHC229 Admin that there existed “a basic symmetry in essentials between a contractually implied obligation of fairness in this context and that derived from statute or general public law.” Whilst the court accepted the principles of public law apply it came to the conclusion the important test was whether, in the Gray case, the parents has obtained “a fair deal of the kind he bargained for”. The Court then returned to the contract and took the view “consultation” was the cornerstone of fairness because it was the clearly expressed term, which the parties had bargained for and hence was the term denoting the nature of their agreement. Fairness, therefore, demanded little more than adequate consultation in this context and the Court made this clear when it concluded:
Unconstrained by any further contractual procedural provisions of the sort applicable to maintained schools, consultation was the contractual mechanism for ensuring fairness….
It must be remembered Gray dealt with a required withdrawal and not an expulsion. Expulsion under the terms of this contract required the Master to “act fairly and in accordance with the procedures of natural justice and ..not expel a pupil other than in grave circumstances…”
Applying the Court of Appeal’s test therefore to determine what is fairness in the context of an expulsion brings us full circle: the parties bargained for fairness. It is unclear what may be imposed, however, there is clear guidance in Gray that public law principles will inform the situation, particularly in a situation where the terms of the contract provide no further assistance. A regime like the maintained sector would therefore be attractive to ensure compliance with fairness and natural justice.
What follows below are some of the cornerstones to ensure an appeal or review process is carried out fairly. It is by no means exhaustive.
5. Cornerstones of Fairness
A fair investigation.
The head teacher or a deputy would normally carry out an investigation in relation to a disciplinary incident so serious, expulsion is considered. That investigation must be carried out fairly.
The nature and context of the allegations must inform how the investigation takes place. The more serious the allegation, the more care should be taken.
Pupils may well have to be interviewed by staff as part of the investigation. Some schools employ the following strategies, which certainly help ensure there are no allegations of unfairness:
• Ask the pupil to write a statement of what took place as soon as is practicable. Ask the pupil to sign and date his or her statement.
• If an interview is necessary, ensure a written transcript is kept, recording each question and answer.
• Provide the pupil with a “supportive” teacher to help advocate on his or her behalf.
• Provide the pupil with water and rest breaks.
• Ensure an awareness of the pupil’s age, circumstance etc, particularly with regard to the seriousness of the allegation.
• Inform the pupils’ parents and ask their permission to question him/her.
• Do not use threats of involvement of the police or expulsion to extract factual confessions.
Clearly there are limits and the courts have been clear, in the maintained sector at least, (Dunraven supra) that the conditions of the PACE Code of Practice do not apply, but the above helps to ensure an investigation is not carried out unfairly.
The decision maker should also maintain an open mind until all the evidence is gathered. Recording of information is essential.
If the behaviour could be construed as criminal it is important to contact the police as soon as possible. An awareness of taking action which could damage or prejudice a criminal investigation or trial taking place is vital.
Does fairness require an appeal against a decision of the head master to expel a pupil? The answer is probably, but not certainly, yes. It depends upon what fairness demands and what the parties bargained for. In reality, it is probably good practice that a panel, of at least two governors and one wholly independent person, sit to consider an appeal by way of the convening of an oral hearing regarding the head’s decision. This may not be necessary, but acts as a useful safeguard on the head’s decision making, is often what parents expect nowadays, and creates a sense of fairness, which should help to ward off any possible unhelpful litigation arising out of expulsion decisions.
The law is clearly moving in this direction. The 2003 Regulations have determined if a complainant is not satisfied with the written outcome of a complaint, the school must organise an oral hearing before a panel which includes at least one person independent of the running and organisation of the school and the other two must not have been directly involved in the matters giving rise to the complaint, Reg. 7.
Burden and Standard of Proof
Generally it would be for the school to prove the facts underlying any action which leads to exclusion or a required withdrawal. It is not for the pupil or his family to demonstrate his or her innocence in the face of allegations.
This would normally require the head teacher to present a “case” against the pupil. Evidence should be used to back this up.
The standard of proof is generally viewed to be the civil one; i.e. on the balance of probabilities, which means it is more likely than not that X did Y. However the Courts have taken the view in relation to more serious disciplinary allegations, that the civil test still applies, with the one caveat, that the more serious the allegation, the more cogent the evidence must be to support the allegation. This means in practice if the expulsion arises out of a sexual assault, the evidence should be cogent; e.g. several signed witness statements corroborating a particular account. One inconsistent, unsigned witness statement would suggest, in relation to such an allegation, there was a lack of cogency. That being said each and every incident will have to be considered individually, but an awareness of these issues is essential.
The maintained sector guidance relating to exclusions has accepted the amended standard of proof test in appropriate cases.
Evidence and Disclosure
It is important that all evidence relied upon by the head to support the sanction is disclosed to the parents. It is materially unfair if, for example, an inconsistent witness statement is not provided to the parents to help them exculpate their child.
Generally an agreed bundle of documents should be sent to all the parties to any hearing several days before it takes place. Providing the parents with the documents on the day would be unfair. They require time to digest what is said and they must understand the case against their son or daughter.
The sanction should be proportionate to the behaviour complained of.
There may be some scope for a harsh sanctions policy if it is made abundantly clear certain behaviors are totally unacceptable. This would involve the sanction being clearly expressed in a behaviour policy, that policy being sent annually to parents and pupils and probably also regular reminding of the pupils at termly assembly etc.
Review or Rehearing
When the Governors meet to consider an appeal of a head teacher’s decision to expel a pupil they must be clear as to their role. Confusion can arise when Governors are unclear as to whether their role is to review the head teacher’s decision or whether it is to rehear the case.
A rehearing is generally fairer as it considers all the evidence again.
A review is more straightforward as it simply considers whether the head teacher’s decision was one open to him and whether it was a reasonable decision.
It is often argued any defects in the head teacher’s decision can be cured by a rehearing or review by the Governors. If there is a serious defect it is unlikely a review would be sufficient.
Also note the comments of the Court of Appeal in Gray, supra that the Governors would be unlikely to cure any defect, as the contractual obligation on the head teacher to consult before requiring withdrawal was upon the head teacher and not the Governors, therefore their actions did not help resolve the question of a breach of contract.
Governors and Bias
It goes without saying that governors chosen to sit on any appeal hearing should not have had prior involvement with the pupil or parents or with the head teacher in discussing the background and disciplinary incidents of the pupil concerned.
If a governor is placed on such an appeal committee it is for each governors to consider whether it is appropriate and fair for them to continue to sit. If they are concerned there is a conflict of interest or there could possibly be an allegation of bias made against them, if it is a strong one they should recuse themselves and if it is more minor they should consider disclosing the issue and asking the parties if they consent to them continuing to sit on the committee/panel.
The Decision Letter
The letter informing the parties of the result should ensure it complies with any policies or contractual terms relating to procedure etc.
It should summarise the main arguments made and produce reasons for the decision arrived at. Reasons need not be terribly detailed, but they should at least explain to the parties the reasons for why they have won or lost.
If any particular issues were raised during the appeal, they should be dealt with in the decision letter.
It may be wise to mention the standard of proof applied.
6. Interim Relief
There have been occasional, but rare, cases of parents seeking interim relief in the context of a contractual claim arising out of a pupil’s expulsions from school. In short this involves the parents (or perhaps the pupil directly) asking for a mandatory interim injunction directing the School involved to accept the pupil back into the school whilst the substantive merits of the claim are eventually resolved by the courts or otherwise.
Generally schools will require to put together evidence by way of witness statements which clearly make a case that the relationship of trust and confidence upon which the school relies when educating a child in consultation with the parents has so manifestly broken down, that the school can no longer engage in a contract for educational services and its staff are unwilling to teach the pupil concerned.
M and W  EWHC 575 is one of the few reported cases in this area. The application for interim relief failed. Originally it was proposed there should be reinstatement of the pupil forthwith, this was abandoned and all that was sought was that there should be disclosure of documents and an oral hearing. The school agreed to disclose redacted witness statements and the judge refused to make an order that there should be an oral hearing. He was satisfied the parental case could be made in writing alone. This was only a decision in relation to interim relief, and the judge expressly took the view it may well be after a full hearing, an implied term relating to fairness, may point to the necessity of an oral hearing.
PRACTICAL ADVICE: It you have doubts about this process, it is always better to consult your lawyer BEFORE rather than AFTER you take decisions in relation to expulsions.