A duty of care

What teachers can and can't do when disciplining pupils is a legal minefield. There is a national call for clarity to protect all involved, Miranda Fettes writes

It is every teacher's nightmare: you arrive at school one morning and two police officers are waiting for you. You are automatically suspended pending an investigation. What do you feel? Fear, anger, injustice, disbelief, humiliation, guilt? All of these things - and more.

Simon Simpson (right), a depute headteacher at a primary school in the east end of Glasgow, was cleared two weeks ago, after a nine-month ordeal, of assaulting a pupil. He was attempting to remove an unruly boy "with a record of behavioural problems" from the school dining room for the benefit of everyone.

There have been others. Lorraine Stirling in Clackmannanshire was acquitted last year of assaulting seven pupils after the court heard they had made up stories about her.

Not only are teachers vulnerable to accusations of assault, but their own chances of being assaulted by a pupil are higher than ever. Using freedom of information legislation, Conservative education spokesman Lord James Douglas-Hamilton last week revealed statistics showing a 25 per cent rise in the number of assaults on staff in Scottish schools. The figures show there were 2,768 incidents of physical violence against school staff in 2005-06, a 24.5 per cent increase on the previous year.

So what more can be done to protect them? The Educational Institute of Scotland is calling for the Scottish Executive to clarify what teachers may and may not do when handling difficult pupils.

"The law is not sufficiently clear in relation to what teachers can and cannot do when exercising disciplinary control over youngsters," says the general secretary, Ronnie Smith. "It relies on a fairly vague notion of what a reasonable parent might do."

There is a tendency, he says, to "rush to the highest level" when there is a disagreement between a teacher and a pupil. "If a complaint is made, the teacher is automatically suspended, sometimes with very little preliminary examination to ascertain whether there is any substance there at all.

"We need to get away from a kind of presumption that if the complaint is made, there is substance to it. It is important that those investigating exercise greater judgment than has been the case."

The EIS is also calling for teachers to be protected by the same anonymity the child is given. But anonymity is an issue over which the teachers' unions part company. The NASUWT is campaigning for anonymity - a right already enjoyed by teachers in England and Wales - but the Scottish Secondary Teachers Association is not so sure.

"We have some reservations about the concept of anonymity," explains its general secretary, David Eaglesham. "While it seems like an attractive idea on the surface, the reality is that most people in the immediate education community around the school will know who it is, so it doesn't necessarily have any effect on the individual concerned."

Mr Eaglesham believes a greater need is to educate children and parents.

"We need to make it clear to young people and their parents that if they think anything is wrong, they have a right to make an accusation but it must be founded, rather than a knee-jerk reaction and an unsubstantiated list of allegations."

The SSTA would, he says, seek damages if an allegation was malicious.

There needs to be a "cultural change", he says; the response needs to be society-wide. "I don't think we can solve it in an educational context in isolation."

He would like to see a high-profile campaign, along the lines of the seatbelt or drink-driving campaign, that could reach a wide audience and be effective.

"We have been pressing the Executive to look at reinforcing the view that respect and tolerance are vital in order to run public services. It's not going to happen overnight; it's not going to happen in six months. But if we continue to reinforce the message, generation after generation, eventually people will internalise it and adapt their behaviour."

The headteachers' associations see no easy answers. It is a product of the litigious society we live in, says Bill McGregor, the general secretary of the Headteachers' Association of Scotland.

"The first question isn't 'What happened?'; it's 'Whose fault is it?'," he says. "The ball lies in the court of the local authorities. If a false accusation is made and the teacher has suffered, I think employers should have a duty to take action against those who have made the false allegations to ensure some form of redress."

Automatic suspension of the teacher should be scrapped, he insists. "The natural thing has been to suspend first, investigate later. Education authorities should be braver in protecting the interests of their employees."

The HAS president and headteacher of St John's High in Dundee, George Haggarty, says good practice at authority and school level are crucial and an open door policy for parents encourages a trusting relationship between a school and community. "The bottom line here is that most good schools try to build a good constructive relationship with most pupils. The school is often encouraged to mediate with the parents and reach some sort of amicable solution."

But the balance is stacked against teachers, argues Bill Milligan, headteacher of Dalmilling Primary in South Ayrshire and a professional advice convener for the Association of Headteachers and Deputes in Scotland. "Our plea is for schools to have a lot more flexibility.

"We are required by authorities to suspend. We would make a plea for at least consultation with the headteacher before any suspension is considered, so that it might not be automatic.

"The present government has been chivvied about this relentlessly and they haven't done anything about it at all."

Roy Robertson

Class teacher, St John's Primary, Alloa

"As a male teacher with 34 years' experience, I will not sit alone with a child in a room with the door shut. I have to have the door open for my own protection.

"The world of Peter Peacock, where he thinks everything is nice and cosy and friendly, isn't the real world. It is incredible that teachers are in this position, when 97 per cent of allegations against them collapse."

Tom Dunsmore

Supply teacher, Fife

"You put yourself at risk every day you walk into a classroom.

"If there is an issue with a child, you cannot count on parental support, nor support from the school's administration.

"All it takes is an accusation by one pupil and the tendency is for the accusation to be believed."

Alex Edwardson

Chemistry and guidance teacher, Dumbarton Academy

"Let's check the evidence before throwing mud, because mud sticks. You're looking for more sensitivity from those who are investigating it. It should be 'innocent until proven guilty'."

Primary teacher, Aberdeen

"Teachers are being derailed by youngsters who have more rights than they have. It's rights without responsibilities. It needs strong leadership and strong sanctions."

Primary teacher, Ayrshire

"We are allowing the minority to wag the whole dog. There surely has to be another route. The teacher is presumed guilty until proven innocent. Surely that can't be right in a democratic society."

Secondary teacher, Fife

"If two children are thumping lumps out of one another, are you meant to let them? In law, you ought to be able to use some restraining measures. We need to inject a bit of humanity into the system; we can't function in this wash of political correctness."

Secondary teacher, Dundee

"The job we do becomes more and more difficult. We are physically and verbally assaulted frequently. Where are the police and the procurator fiscal?"

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