Know the rules and ease the burden of legislation
One of the best descriptions of the experience of the newly qualified teacher is by DH Lawrence in The Rainbow. In the course of a fairly nightmarish start to teaching, Ursula Brangwen wildly beats a particularly obnoxious boy. The mother comes to complain. The head, who has shown Ursula nothing but contempt up to this point, freezes the mother out, and Ursula goes on to control the class and leave with some sense of triumph.
Lawrence knew a bit about teaching, but one cannot imagine his heroine getting away with this today. An interview with the police, a disciplinary hearing in front of the school governors and a reprimand from the General Teaching Council is the least she might expect.
Even if today's teachers think she would have got no more than she deserved, there might be a slight sense of nostalgia for the days when there were fewer "little princesses" in school, and when a judge could dismiss the idea that an aggressive teenager "should be treated with all the courtesy due to visiting royalty".
"We live in a litigious age," people sigh. After all, everyone knows that you daren't take pupils out on a school adventure trip for fear of legal action, and that children must play conkers with goggles on.
Certainly, it feels that way. Yet nationally, the number of actions over accidents is falling. And many of the examples of crazy legal actions are precisely that - examples of actions, not victories. Indeed, the Health and Safety Executive entered a team in the world conkers championship - without goggles - to disprove the idea that it was their fault that health and safety had gone mad.
One underlying problem is an affliction that one may call "hyperactive legislative syndrome". This is almost as recent as ADHD and quite a lot more difficult to make reasonable adjustments for. If something isn't perfect, goes the theory, make a law and it will be.
Whereas there was one master Education Act from 1944 to 1980, there has been - depending on what you count - one education Act per year since 1986, on average. The consolidating Education Act of 1996 has been amended to tatters. Indeed, distinguished education lawyers express concern about what the law actually is.
As schools' responsibilities have widened, the wider responsibilities have brought new legal considerations. For example, under local management, schools have employment responsibilities. This has coincided with the European Union moving into its social partnership phase, with new responsibilities laid on employers.
Similarly, some rights that had been developing through the common law became fixed and enlarged through statute in a range of employment legislation - most notoriously in the statutory discipline and grievance procedures.
Health and safety legislation that is directed to employers has become more complex, culminating in the new Corporate Manslaughter Act. The courts have enlarged it further - trying, for example, to define what constitutes "equipment", and whether a surface that is safe when dry but slippery when wet contravenes the relevant legislation. A head can be prosecuted personally, as manager of the premises, for breaches of fire regulations.
Many things that were accepted practices became controlled by statute or regulation after the teachers' strikes of the 1980s. So the hours a teacher can work at the direction of the head are defined, invigilation is barred, and soon cover will become rare, by law.
Equality legislation - some, not all, from Europe - is also a major factor. This is not just the need to have an equality plan, which should at the moment be having an interim review. And it expands when it gets into the courts: for example, since part-time workers are predominantly women, discrimination against part-timers becomes discrimination against women.
Once the idea of legislating against discrimination became established, it spread from gender and race to disability, to sexual orientation, to age and religion. Each time there is more to beware of, more work to do to comply and prove you are not breaking the law.
It is now an offence to allow harassment of female workers by third parties. We may wait with interest for the first action for failing to protect a teacher from an aggressive mother at parents' evening.
Then there is the specific legislation on matters which, before the 1980s, no one had thought to legislate on - the curriculum, for instance: the duty to meet the "entitlement" to certain subjects, provide sex education, provide work-related learning, and citizenship and careers education.
There is a pattern here. The school is seen - almost desperately - as the one institution in which we can get to the young. Any social need must therefore be met by teachers, and teachers must be forced to do it by law.
There has also been a tendency to "privatise" the struggle of trade unionists with their employers. Where once we might have seen industrial action to defend an individual's rights, a school may now find that a grievance is raised, possibly prior to recourse to employment tribunal.
This is all to do with the school as employer, as occupier of premises and as institution. And we haven't yet mentioned the children. Has the duty of care changed towards them? Again, we have seen a flurry of legislation. The protection of children has become subject to a series of legal provisions that cover everything from the employment of staff to the reporting of absence which stems from a forced marriage.
There has also been an apparent need to codify what was once taken for granted. For example, the right of a teacher to use force to prevent indiscipline has been legislated on. The right of a school to make rules has now been legislated on. And the powers of a school to suspend or expel children (I deliberately use the everyday, not legal, expressions) has been legislated on.
But having to watch out for the law is not the same as falling foul of it. Even allowing for the tendency for insurance companies to settle rather than fight, we are nowhere near the situation in the United States, where on average people spend more of their income and litigation than on their cars. Litigation in Britain per person is a third of what it is in the US, and is not increasing towards American levels.
Oddly, it is true that the volume of cases has not increased, and that people are more afraid of litigation. Though education-related cases regularly pass through the courts, the number of cases is relatively small compared with other aspects of the law. Education relatively rarely features in employment cases in the higher courts or in cases of negligence. Most cases related to education that reach the higher courts involve claims by parents against local authorities over special educational needs.
We are now a better-educated but less settled society. It is often when society is in ferment that it turns to the law to settle differences. Citizens are more aware of their rights and more assertive about them. It is probably true that schools have to be more careful. At the moment, they are doing it well.
Richard Bird, a former headteacher, is legal consultant to the Association of School and College Leaders
QUIZ: HOW WELL DO YOU KNOW THE LAW?
1. "Young, enthusiastic NQT PE teacher required September." Should you rephrase this advert?
2. A member of staff asks for flexible working arrangements to look after an elderly relative. Must you agree?
3. A member of staff agrees to resign before disciplinary proceedings for misconduct have gone to a hearing. An agreed reference is part of the deal. Have you anything to do after providing the reference?
4. A member of staff slips on a floor that has been recently polished by your over-enthusiastic caretaker. Is the school liable for any injury?
5. Your school is suffering from falling rolls and your curriculum deputy says he thinks you will have to declare redundancies. Can you cut the hours of part-time staff first?
6. A parent comes to the Year 9 parents' evening and states that her child will be doing German next year. When your head of school tells her that the school does not offer German she says that, according to people she has talked to, the school has a duty to provide it for her. Is she right?
7. A governor claims that it is compulsory under health and safety regulations to put all children and staff in fluorescent jackets when they go on school trips. Is he right?
8. You have told students that you will take action if they misbehave on the way home. A parent complains and says you have no right to make rules for things that happen out of school. Is she right?
9. "I have told the bursar that I am changing her terms and conditions from September. She says I can't do that. Is she right? Surely I am the employer?"
10. "I asked how long a risk assessment for an outdoor trip should be and I was told about four pages. Is it worth bothering if there is so much paperwork attached?"
1. Probably. It is a clear case of age discrimination and would be difficult to justify.
2. Probably. If the relative lives at the same address, you have to consider it. You do not have to agree if there is a good business reason for not doing so: but you will have to justify this.
3. Yes. Report the facts to the DCSFISA. If it had been for incompetence, the reference would have been sent to the General Teaching Council?
4. Yes. The school occupies the premises, and floors must be suitable. It is also an offence to have unsuitable floors in a workplace.
5. No, this would be discriminatory and contrary to the rights of part-time workers.
6. No. The school must make arrangements for the child to study a modern language, but the entitlement is not to a specific language.
7. No. A school may make a risk assessment and decide that this is sensible, but others would think it was a step too far.
8. No. Under the Education and Inspections Act 2006 schools have the power to take action on misbehaviour outside school, particularly where that misbehaviour is related to the school.
9. No, you are not the employer (though you may act for the employer) and you cannot change terms and conditions without employees' consent or by dismissing and then re-employing her on new conditions if she agrees.
10. Yes. The Health and Safety Executive says " ... paperwork never saved anyone. It is a means to an end - action is what protects people. For most, simple bullet points work very well indeed. Whatever is stopping people volunteering, it shouldn't be health and safety. The earlier children learn about risk and how to handle it, the better."
All correct? You may need to give more time to the day job
All wrong? You need a good deputy head or a bursar
More than 5? Ask before you act
Less than 5? Where have you been for the past 10 years?
If you responded to all these questions with "It all depends on the circumstances", you are a solicitor.