Nothing to hide, but a lot to lose
As well as its impact on our own school, the recent case of Sebastian Sharp versus the governors of Shene School has raised issues of concern for all LEAs, governors and schools. What can be learned from our experience?
First, whether such cases are settled in or out of court, schools are now vulnerable to litigation which questions whether the duty of care has been exercised reasonably. That applies to all schools, however effective their policies.
In our own case, as far back as 1990 Shene had in place policies and procedures for dealing with bullying. In assemblies, personal and social education and through the informal culture of the school, it was and is regarded as a totally unacceptable form of behaviour. In 1989 the school started a system of pupil reviews, one-to-one meetings between the form tutor and pupil to discuss academic progress and the pupil's own welfare.
It was through one of these tutorials that the plaintiff said that name-calling was worrying him. The form tutor discussed this with the head of year and drew up a course of action to deal with the problem. We monitored the situation to make sure that the matter had been dealt with. We were not aware of any other major problem. His parents never once raised any worries about their son while he was at school.
Second, the way the legal system operates reinforces the vulnerability of schools. Although we considered we had a very strong case, it was not heard. The plaintiff was legally aided throughout. He incurred no expenses and ran no financial risks. The Legal Aid Board sanctioned the employment on his behalf of a prestigious and expensive QC, Cherie Booth, a week before the trial was due to start. Suddenly we were told it was going to be a 20-day trial instead of 10 days. Because the plaintiff was legally aided, our insurers had to meet the defence costs whatever the outcome. A decision was taken with the insurers to settle the claim to avoid an expensive trial.
Third, in the light of our experience out-of-court settlements should be viewed with extreme caution. It was widely assumed that the school had something to hide. Why should the insurers pay Pounds 30,000 if you have a strong case?
The governors had hoped that an out-of-court settlement with no admission of liability would have remained confidential to both parties. This was seen as preferable to the publicity and disruption generated by a four-week court case. But there was no provision to ensure confidentiality. The allegations emerged into the public domain and were then repeated as fact in both the quality papers and tabloids. Other misrepresentations suggested that the school had made the decision to settle.
In effect, the plaintiff has walked away with Pounds 30,000, and is now at liberty to repeat allegations which have not been tested in a court of law.
I am sure that schools will now review their anti-bullying policies but our experience shows that is not enough. If the legal system is not to be used in future to undermine all the good work that is going on in schools, consideration needs to be given to the use of legal aid, so that tax-payers' money is not used to subsidise unsubstantiated allegations. Alternative ways must be found to deal with such situations which avoid recourse to the High Court. In the last resort, our case was not heard because it was judged too expensive to hear it.
I would suggest that insurance companies work with LEAs, governors and teacher associations to draw up guidelines which can be applied to future cases, establishing that considerations other than financial ones would be taken into account. Finally, we need to ask some searching questions about our own society and values. Is this not another example of public institutions staffed by dedicated professionals undermined as we move increasingly towards American-style litigation on demand.
Simon Williams is head of Shene School, Richmond upon Thames