Who is responsible for what?
All employers are required by law to ensure "so far as is reasonably practicable, the health and safety at work of all employees". Under the Health and Safety at Work Act this duty is extended to pupils and others in school who might otherwise be affected. But who, in a school or college, is the employer?
For independent schools the employer may be the governing body, the foundation or the proprietor. Although they cannot evade ultimate responsibility, they usually delegate day-to-day management of health and safety to heads. The governing body is also the employer in FE and sixth-form colleges, grant-maintained and voluntary-aided schools; its article usually give it responsibility for health and safety.
The local authority is the employer in county schools. Governors and heads must comply with any directives issued by them on health and safety. But since both the money for maintenance and the power to spend it is invariably vested in the governing bodies of schools with delegated budgets, the authorities are in the unenviable position of being responsible for picking up the pieces without being in full control.
Authorities normally set out the duties of governing bodies and provide advice and guidance to their schools. They are also responsible for health and safety committees in each school even though in practice the committees will report to heads and governing bodies. What all this amounts to is that governing bodies cannot, as they used to, simply refer all hazards and defects to the authority for solution. Governing bodies must actively discharge their duties and ensure that heads do the same.
The Health and Safety Executive and courts can take action against either an authority or governing body or both. Governors must, therefore, act responsibly, seek guidance and follow expert advice.
Governing bodies rightly expect heads to be the front-line health-and-safety managers. No specific reference to health-and-safety responsibility is contained in the statutory conditions of employment of headteachers in the Schoolteachers' Pay and Conditions Document, apart from the duty to report any lack of maintenance to the authority or governing body. The heads' responsibility stems from the requirement to follow any policies or regulations laid down by the employers in articles or directives and the responsibility for "the internal organisation, management and control of the school".
The Liability Act l977 also places a duty on the occupier to take reasonable care to make sure that any visitor will be safe while on the premises. The occupier of a school has not been defined, according to the Department for Education and Employment. The department's view is that for an LEA-maintained school the occupier is likely to be the authority during school hours and the governing body outside school hours. This leaves a great deal of room for confusion. Which is why schools find it difficult to determine whether extra insurance is required to cover outside bodies using school facilities.
Teachers and deputy heads also have a duty to "safeguard" the health and safety of pupils when authorised to be on school premises and "when engaged in authorised activities elsewhere". All employees, including non-teaching staff, must ensure that they carry out their duties safely without risk to themselves, pupils or visitors. They must co-operate with senior managers by carrying out instructions and reporting defects and unsafe practices.
Trade unions recognised by employers may appoint safety representatives and, at the written request of at least two safety representatives, an employer must establish a safety committee.
Heads of department do not have any higher duty than any other teacher unless specific responsibilities for health and safety are earmarked. But science, PE and craft and design teachers will have a higher duty of care by virtue of their specialist roles. It is usual for health and safety to be spelt out in job descriptions. This is also true of non-teaching staff. Caretakers often have important responsibilities for site security: locking doors, closing windows, switching on burglar alarms. Technicians will have responsibilities for the safety of equipment and materials in their care.
Schools do not have the expertise of qualified health and safety officers, so they need help from the local authority in assessing and managing risk management. These are complicated activities. Hazards do not occur in simple, detailed incidents; they pop up sporadically and cause havoc. Assessing hazards at a given moment is useful as an audit, but a culture of risk recognition and risk reporting has to be nurtured if an organisation is to achieve a high level of safety and security.
Pupils as well as the adults should be trained in the "safety ethos". All schools should, for example, carry out their statutory fire drills, insist on safe procedures for moving around sites and ensure acceptable standards of behaviour.
Every identified individual risk should be dealt with but the overall safety consciousness of the school is even more important. It is this ethos that heads and teachers should seek to create.
SKATING ON THIN ICE
Heads and teachers are concerned about their responsibility for pupils' safety before and after school. It remains a grey area. Teachers are guided by the time they are directed to be at the school and the time of leaving. This is part of "directed time" as detailed in the conditions of employment. The local authority and school are caught between the cases that indicate that if they allow children on the site then they are responsible for them, and the cases that suggest that parents do not have a right to expect schools to take on the responsibility of looking after their children outside ordinary school hours.
One boy was badly injured after slipping on a slide made in the playground on an icy morning. It happened a few minutes before the school was scheduled to open. A few weeks previously the local authority had directed that a teacher had to be on duty 15 minutes before school opened. On this day the supervisory teacher was in the staffroom. It transpired that the school had not received the authority's circular.
The head decided that neither he nor his teachers could take responsibility for the children before the school was officially open. The judge considered that it was impossible to expect all parents to deliver children just on the dot of the opening time but held that the authority could only be responsible if it voluntarily accepted them on to the site.
As to the parents' claim that the sliding should have been stopped, the judge pointed out that sliding was an ancient practice and, as life is full of physical dangers, children must learn to recognise and avoid them. The playground is a place to learn this.
Specialist teachers in subjects that are potentially more hazardous have a greater duty to consider risks to themselves or others.
A chemistry teacher sent two boys across the school with a bottle of sulphuric acid after the school day had finished. They were jostled by other boys who were messing about in a quadrangle, and the bottle of acid shattered, scarring one of the mischievous boys. The parents sued the governors and head.
The head said that the chemistry teacher was competent and so were the monitors. The plaintiffs should not have been breaking rules in the quad.
The court held that the head was negligent in not ensuring that the unruly boys had left the site at the end of school. The chemistry teacher should have checked that the route was clear before sending the monitors out with the acid. School rules were in place but they had not been followed.
Schools, like any other institution or business, must take note of the issue of smoking at work. There is no specific law restricting smoking except in special cases in certain industries, but recent case law has reflected the increasing interest in the danger of "passive smoking". Suitable rest facilities must be provided to "protect non-smokers from discomfort caused by tobacco smoke". Schools can also consider a total ban.
A hospital had set aside areas for smoking but then imposed a total ban after lengthy consultation. Counselling was offered to those who found it difficult to stop smoking. A nursing auxiliary, who was a heavy smoker, suffered considerable discomfort and resigned. She claimed that her original contract carried an implied term allowing her to smoke, and that the ban constituted a breach of contract.
The tribunal found in favour of the employer. Employers are entitled to make rules for the conduct of employees. A rule banning smoking was lawful.
CLIP IN THE EYE
Although teachers are not obliged to take part in mid-day supervision, heads have a duty to ensure that a safe system is established and that the supervisors are competent.
During a wet lunchtime an eight-year-old boy was in a classroom with 30 other boys and was injured in the eye by a paper clip fired from a rubber band by another pupil. One non-teacher supervisor was on duty supervising two classrooms and about 59 to 60 pupils. She was not in the classroom when the incident happened.
The head in evidence agreed that the boys would probably not have fired the clips if a teacher or supervisor had been present. It would have been better to have one supervisor per room, but this level of provision had not been possible.
The court held that the level of supervision was unsatisfactory but attached no blame to the dinner lady.
BLINDED BY SAND
Schools must have procedures established to ensure as far as is reasonably practicable the health and safety of staff and pupils At a London junior school it was usual for the pupils to be escorted to a nearby playcentre at the end of school to await parents. The children had been warned not to go near a pile of sand in a nearby playground which was being used for the building of a swimming pool. One day, two boys absconded on the way to the playcentre and made their way to the playground. During a rough and tumble, one boy was hit in the eye and blinded by sand thrown by the other boy. The parents sued the local authority as the employer on the ground that the local authority had breached its duty of care by not ensuring adequate supervision for the whole of the journey.
The Court of Appeal held that the supervision was reasonable. Neither the authority nor the school could reasonably be expected to keep an eye on children every minute of the day. In addition, the teacher's responsibility ended when the children had left the school to go to the playcentre.
* Chris Lowe is head of Prince William school, Oundle, Northamptonshire