Schools are at risk of legal challenges from pupils who have been sexually harassed on their premises, human rights lawyers have warned. And they say the Department for Education could be taken to judicial review over its duty to protect schoolgirls from abuse by their peers.

Under the Equality Act 2010 and the Human Rights Act 1998, schools have a duty to ensure that they are doing everything possible to keep pupils safe from sexual assault and sexual harassment, according to Sarah Ricca, solicitor with human rights firm Deighton Pierce Glynn.

The acts stipulate that any individual has the right to freedom from “inhuman and degrading treatment”, as well as the right to an effective education. But Ms Ricca is concerned that schools have not grasped the full implications.

“There have begun to be moves around how the police deal with sexual violence and female genital mutilation,” Ms Ricca said. “There is increasing recognition that we aren’t getting this right as a society. And schools haven’t caught up. They’re a piece of the jigsaw that is still missing.”

The solicitor pointed to evidence from this month’s Commons Women and Equalities Select Committee report, which finds that groping, name-calling and bullying are part of everyday life for schoolgirls, but tend to be dismissed as banter.

“There’s an obligation on any public authority to have systems in place to protect fundamental rights,” said Ms Ricca, who has advised the End Violence Against Women (EVAW) coalition. “Just as there is in the context of the workplace.”

If an employer was letting its employees be regularly groped by other employees, or they were being called sluts and slags, the employer could be sued for sexual discrimination, Ms Ricca said. “It’s not all that different in schools,” she added.

The issue is particularly pertinent to girls because it’s easier under law to establish that a girl has been disadvantaged because of her sex.

“If girls are being sexually harassed, whether verbally or physically, they have a potential claim under the Equality Act or the Human Rights Act, or possibly negligence, because schools have a duty of care,” Ms Ricca said. “So, on a number of levels, legal rights are engaged here, and legal obligations on the part of the school. If those obligations are not discharged, and if legal rights are breached, then the school could be sued. That’s how seriously society takes this kind of abuse.”

This week, the EVAW coalition published a report highlighting schools’ legal obligations to respond to sexual harassment and violence against girls. All Day, Every Day outlines schools’ legal duty to deal swiftly and effectively with all forms of sexual harassment.

“The school should be doing everything they can to ensure girls’ progress,” said Sarah Green, the organisation’s co-director. “Not just not treating them badly. Otherwise, you get a certain culture of sexual harassment. A lot of children are aware of it, and it affects how they all feel and how they all behave.”

Serious problem

Mary Bousted, general secretary of the ATL teaching union, agreed that sexual harassment was a serious problem in schools. “It’s absolutely the school’s responsibility to ensure that girls feel as safe as boys do,” she said. “But I think the idea that you’d resort to the law is neither practical nor very helpful.”

Ms Ricca said her aim was not to encourage pupils to bring cases against schools but to ensure that teachers were trained to respond appropriately to issues of sexual bullying. “We aren’t getting it right at the moment, and we aren’t doing enough,” she added.

Maria Miller MP, chair of the Commons Women and Equalities Select Committee, said this month that girls were being subjected to behaviour that would be outlawed in the adult workplace. “Too many schools are failing to recognise this as a problem and therefore failing to act,” she argued.

But Malcolm Trobe, interim general secretary of the Association of School and College Leaders, said: “Schools will have appropriate procedures in place in order to deal with these situations.”

The DfE guidance document Keeping Children Safe in Education deals at length with how to ensure pupils are protected from adults.

But Ms Ricca said that because it offered only cursory advice on protecting children from peer-on-peer abuse, the DfE could be subjected to judicial review for failing to safeguard pupils. “If the guidelines that the government puts out don’t address an area that needs to be addressed to keep children safe, that falls short of the legal requirement,” she said. “It’s a fundamental right: education in a place where you feel valued and safe.”

A government spokesperson said: “Our statutory guidance is clear that anyone who has concerns about pupils’ welfare should contact local authorities - or, if a crime is committed, the police - and all schools must act swiftly on any such allegations.

“The Keeping Children Safe in Education guidance states that schools and colleges’ child protection policies must include procedures to minimise the risk of peer-on-peer abuse, and must outline how to tackle allegations of abusive behaviour. These policies should also make clear that abuse is abuse, and should never be tolerated.”