The Law - When an exclusion is overturned

28th November 2008 at 00:00

Contrary to popular belief, independent appeals panels do not always overturn headteachers' decisions to exclude permanently. In fact, as one might expect in a reasonable world, most decisions are upheld. But it does sometimes happen; panels have been known to direct reintegration where a pupil has been found in possession of an offensive weapon or where there has been actual violence.

The reaction of staff is sometimes to seek union support for a refusal to teach the child concerned. Can they do it? What should a head do?

The House of Lords has ruled several times on this issue and it is settled law (as far as anything is) that union members may take action in respect of a returning child because it affects their conditions of employment.

A head must do what can be done and make the best arrangements that can be made. These arrangements may include isolation for the child and restricted access to the national curriculum.

The head has a duty to comply with the appeals panel's direction, but is entitled to balance this against the consequences of provoking industrial action. Moreover, the head is not required to wait until a ballot has been held and "relations with the unions have completely broken down". The courts recognise that once it is reasonably clear that there is no prospect of an agreement, then the head may act.

The head may not, of course, collude with union action and should do all that can be done to resolve the matter: for example, by asking whether the union's members would be prepared to teach if additional support were available.

While discussions are proceeding, it may be sensible to work with the local authority to ensure the continuation of the full-time education provision set up for the child while heshe was permanently excluded.

Richard Bird, Legal consultant to the Association of School and College Leaders.

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