15th November 1996 at 00:00
Q. Should an independent school have an appeal procedure when pupils are expelled?

A. Independent schools are, by their nature, entitled to make whatever arrangements they see fit in this matter. These are normally set out in the prospectus or elsewhere.

Generally, the power to expel is either delegated entirely to the head or, in some cases, is limited by a requirement to consult the chair of governors. A right of appeal is unusual. When a parent attempted a few years ago to challenge an independent's right to expel this way, the court gave no support, although the judge who heard the case expressed his regret that he was unable to help.

It does seem contrary to natural justice that a pupil's school career may be seriously damaged as a result of one person's decision, where there is no way in which that decision may be reviewed or challenged.

No independent would wish to be encumbered with the complex machinery which LEA schools have to cope with. But I believe it would be a sign of strength rather than weakness to allow parents of expelled pupils to have a hearing before a panel of governors, whose brief would be to satisfy themselves that the head had acted reasonably and that there were no mitigating circumstances which might lead to a review. The head would be present to advance his or her case.

Some heads may feel that such a procedure would undermine their authority. Many, I suspect, would be happy to allow their judgment to be tested in this way.

Q. When a teacher is suspended during an investigation, is it reasonable to specify not only that they should not enter the school premises but also that they should have no contact with pupils? In a small town, this is tantamount to house arrest. Does an employer have the legal power to do this?

A. A requirement such as this is not uncommon when an investigation involves relationships with pupils, and the reason is obvious. The investigation should not be frustrated by any contacts which might corrupt or conceal evidence, and, with pupils especially, it is right to take steps to ensure that witnesses are not subjected to unfair influence.

The intention should be clear: contact means spoken or written communication, and it is that contact which is to be avoided. It is possible to walk along a street and even to return a polite and unsolicited greeting without establishing meaningful contact.

The employer, in issuing this instruction, is not relying on any special legal power, but upon the normal employer-employee contractual relationship.

Were the teacher to disobey the directions, it could be treated as a disciplinary offence and, if the defiance is flagrant and persistent, the employer might be able to obtain a court injunction to stop it. The onus would then be on the employee to show that the employer was acting unreasonably.

Q. In what circumstances can a head of a grant-maintained school stop a day's pay from a teacher on a permanent full-time contract? What fraction of pay should be deducted?

A. No head could do this unless he or she had delegated authority to do so from the governing body. The head could recommend such a course of action to the governors.

The circumstances would be exactly the same for any employee anywhere, namely that a day's pay might be deducted if a day's work, for which there is a contractual obligation, has not been delivered, where the failure to deliver is not the consequence of illness or has not been authorised by the employer. It is also possible for an employee to be granted leave of absence without pay, in which case a deduction would also be made.

The School Teachers' Pay and Conditions of Service Document lays down that a teacher is required to be available for work under the reasonable direction of the head for 195 days per year. A reasonable deduction of salary for one day's unauthorised absence, or permitted absence without pay, might, therefore, be one 195th of that teacher's annual salary.

* Questions should be sent to Helpline, The TES, Admiral House, 66-68 East Smithfield, London E1 9XY. Fax: 0171 782 3200. e-mail: letters@tes.1.demon.

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