In two recent cases, schools have been sued: in one, on the grounds that its negligence led to a pupil being seriously injured; in the other, by a former teaching assistant who believed he had been unfairly dismissed. What were the facts, and were the schools at fault?
Preventing injury in play areas
A 14-year-old pupil, Dyer, suffered injuries when a fellow pupil pushed open a gate, striking Dyer in the head.
The gate closed off a passageway between the wire mesh fence at the edge of a games area and a wooden barrier that the school had built to reduce the amount of noise escaping from the games area to classrooms and to the school's neighbours. Pupils were discouraged from entering the passageway, which the school used to store sports equipment. Normally, the gate was locked, but it was unlocked on the day in question because the padlock had gone missing.
There was some disagreement among the witnesses about exactly what happened, but the judge found that Dyer had been horsing around with other boys of his own age during their lunch break. They shut one of their number in the passageway and held the gate closed. The boy inside the passageway kicked the gate open just as those who were holding it let go. Dyer was standing in the path of the gate.
In considering whether the school had been negligent, the judge asked two questions:
- Should the school have ensured that the gate was locked at all times?
- Were there enough teachers supervising the pupils during the lunch break?
On the first point, the judge's view was that Dyer was extraordinarily unlucky: the kind of accident that injured him could only have happened if someone was standing in the small arc into which the gate swung at a time when it was pushed with a great deal of force. The fact that it would not have occurred had the gate been locked was irrelevant – the question for the court was whether this type of incident was reasonably foreseeable. In the judge's opinion, it was not.
On the second point, the judge found that there was enough supervision. Moreover, even had more teachers been patrolling the area, they could not have prevented the incident.
The school was therefore not negligent. This is a helpful example of the Courts taking a realistic and reasonable approach to the extent to which schools can prevent genuine accidents.
It is worth noting that the judge made a number of comments about what the law expects of schools. A school has a duty to take such steps as are reasonable in the circumstances to ensure that pupils are kept safe while on its premises. This may give rise to a duty to protect pupils from injuries during horseplay that are reasonably foreseeable, but matters such as the age and experience of pupils are relevant factors in determining what is reasonable. Young people may be more vulnerable to injury than adults (due to their lack of experience of actions having consequences) and may be attracted to areas that are out of bounds, but a balance needs to be struck between the likelihood of a risk occurring, the degree of injury if it occurs and the expense and inconvenience of taking steps to mitigate it.
In this case the risks could have been reduced if the pupils were kept confined in an entirely safe play area, but whilst that sort of "kettling" might be appropriate for very young children, the pupils involved here were 14 – an age when most young people are free to travel unsupervised and can be expected to have a greater appreciation of risk than younger children. One of the pupils involved told the court that they had played the game of trapping a fellow pupil in the passageway before, but there was no evidence that the school was aware of this or that anyone had previously been injured. This was not a case where the school was aware of a significant risk and had failed to take action to ensure it did not materialise.
The pupil hit the ground with "quite a thud"
In the second case, the claimant was a Mr Witts, who had been a teaching assistant for over 20 years. He worked at a school for children with special needs and – until the events leading to his dismissal – he had an untarnished disciplinary record. During one break time, he pulled a pupil (VB – who was known to be difficult and had been violent in the past, including towards Mr Witts) away from a doorway, because VB was making it difficult for staff to enter or leave the building. As Mr Witts was walking away, VB attacked him from behind, smashing his glasses. What happened next was (understandably) muddled, but VB ended up falling onto the ground with, according to some witnesses, a thudding sound.
The school temporarily excluded VB and suspended Mr Witts. After a five-hour disciplinary hearing, the panel concluded that Mr Witts had physically intervened with VB (by pulling him away from the door), even though VB was not causing harm and other staff were watching him and had told him that they did not need his help. Following that intervention, Mr Witts had failed to apply the de-escalation principles he had been trained to use and, instead, deployed unnecessary physical action. Mr Witts had failed to show any understanding that his actions might be wrong, which had destroyed the relationship of trust between him and the school. Mr Witts was summarily dismissed.
At the Employment Tribunal (the ET), the school acknowledged that the first part of the incident – pulling VB away from the door – would only have merited a verbal warning. However, it had treated the two parts of the incident as a single whole. The ET approached the matter in a similar way, concluding that the school had reached a genuine belief in Mr Witt's misconduct and had acted fairly in dismissing him.
Mr Witts appealed to the Employment Appeal tribunal (the EAT) on two grounds. The EAT upheld his appeal on the first ground: the ET had made an error in characterising the two parts of the incident as "interventions" by Mr Witt and by failing to consider the fact that, in the second part, he was defending himself from an attack from behind. Even the school's disciplinary panel accepted that Mr Witt did not initiate the second part of the incident. The EAT recognised the different nature of Mr Witts' conduct at the start of the incident and at the later stage, and stated that this was a relevant factor given that the school had said that it would not have dismissed Mr Witts simply for the initial intervention. In the circumstances, the ET should have assessed whether it was within the range of reasonable responses for the school to dismiss Mr Witts for his physical action in responding to VB's attack on him from behind.
The EAT acknowledged that "an employer might reasonably take the view that the context – including [Mr Witt's] earlier ill-judged intervention – was a relevant factor" but continued: "We consider, however, that the [Tribunal] needed to ask itself whether it was within the range of reasonable responses to consider this physical response an act of gross misconduct, given that the employee was himself being attacked from behind at the time."
Having found the ET's reasoning flawed, the EAT remitted the case to be heard by a different Tribunal.
Until the case is re-heard (and any further appeal process comes to an end), we cannot know for certain whether the dismissal was unfair. Nevertheless, as it stands the case indicates that it will be wise for disciplinary panels to take a granular approach to events that consist of more than one part. If one aspect of a disciplinary case would lead to a lesser sanction than dismissal then, whilst that aspect may still be relevant, a school should be careful to ensure that dismissal will be a reasonable response to a different (albeit connected) aspect. Whilst it may seem obvious, schools should also consider whether a member of staff was acting in self-defence when assessing the seriousness of his or her use of physical force.
If you require further information on anything covered in this briefing please contact Rachel Holmes([email protected]), Ben Longworth ([email protected]), Alice Yandle ([email protected]) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2017