The Education and Inspections Act 2006 brought in new clear-cut legal powers for schools and for those working within them when they are dealing with the behaviour and discipline of pupils. This includes promoting good behaviour and programmes of reward and recognition, as well as dealing effectively with negative behaviour.
New guidance sets out the responsibilities of members of staff at various levels, as well as particular issues such as detentions.
What governors should be doing
School governors have a statutory responsibility for determining their school's ethos with regard to disciplinary matters. This involves writing, and regularly reviewing, a statement of what the Department of Children, Schools and Families (DCSF) calls "general principles of how pupils should behave and relate to one another and to others". These principles must take into account the health and welfare of staff and the duty of care that governors have for this.
The statement must comply with equalities legislation and have regard for the well-being of pupils. There is also a legal requirement on governors to consult with the headteacher, teachers (including union representatives), parents and pupils about the statement. Consultation with pupils does not need to be formal and can be done in a way that places no demanding extra responsibilities on school staff.
The guidance on the writing and dissemination of this written statement relates to all maintained schools, including pupil referral units, nursery schools and non-maintained special schools but not independent schools, including city technology colleges and academies.
The guidance on the power to discipline, on detentions, confiscation and rewarding children applies to all schools in England and Wales.
Headteachers are tasked with developing the statement's principles into a working policy document for the school. Its aim must be to promote good behaviour, not simply to deter the bad, and it must deal with bullying in all its forms. The policy must be publicised and explained to staff, students and parents at least once a year but, more generally, it must be known and used throughout the school.
The policy must make clear what is acceptable and what is not, and what happens when a pupil oversteps the mark. To promote good behaviour, it must also show how good and positive behaviour and attitudes will be rewarded and encouraged.
The right to discipline
Under the Act, a staff member who has been specifically authorised by the head now has legal backing when admonishing or punishing a pupil for failing to follow a school rule, or to do as they are told. All teachers, and other paid staff "in lawful control", have this power, unless the head says they don't.
The head should make it clear and transparent to every person paid to look after pupils what their responsibilities are when it comes to imposing sanctions, and of any limits on those responsibilities. And so, for example, a school head may decide to limit the power to impose detentions to heads of year, or that teaching assistants may not give extra homework.
The head is under a legal duty to publicise the behaviour policy itself by way of a written document. A particularly vital point in this respect concerns detentions and confiscations - detention is illegal if the head has not made parents and pupils aware, through the behaviour policy, that it is a possible sanction (web page on detention).
The Act also extends the head's power to authorise other adults in lawful charge or control of pupils to exercise the power to discipline; for example, a parent supervising a football match.
The only group of people associated with the school to whom the head cannot give disciplinary powers is the pupils themselves.
Discipline outside the school
School rules can be made to regulate, as far as is reasonable, pupil behaviour outside of school when the pupil is not in the control of a member of staff. There is, however, no definition of 'reasonable' - this must be a judgement made by the governors and the head, who must be clear about the factors that they take into account. Any sanctions imposed must happen while the pupil is actually on school grounds.
The Act provides a specific statutory defence against accusations of illegal confiscation: the seizure, retention or disposal of a pupil's property must be lawful. Provided the confiscation is a named sanction in the behaviour policy and the action can be deemed reasonable and proportionate, school staff are on solid ground.
A confiscation based on the need to maintain a suitable learning environment - for example, confiscating an MP3 player - is clearly reasonable; throwing it in the bin would be disproportionate.
It is still unlawful to search pupils without consent, unless the search is conducted on the basis of reasonable expectation of finding a weapon (searching for weapons section).
The Steer Committee, the national working group on discipline and behaviour, believes school staff should receive timely and appropriate training in behaviour and discipline management, including in initial teacher training.
ATL advises that when studying the school's policy, you consider carefully whether sufficient weight has been given to the need for adequate training and back-up of all those who come into contact with pupils.
The school or college discipline policy should state clearly what sanctions are available and who has the power to impose them. Teachers and lecturers should clarify what authority they have to impose punishments, and if there are circumstances where they must refer an issue to a senior colleague.
The school or college should publish an escalating system of sanctions which might consist of removal from classes, loss of privileges, reporting to senior staff, contact with parents/guardians, being placed on 'report' and behaviour 'contracts', through to temporary exclusions (suspension from school or college) and, ultimately, permanent exclusions.
The Act sets down detailed controls on some of these sanctions. For example, only the headteacher/principal can exclude a student from school or college - and he or she must follow a designated procedure when doing so. Detentions can be imposed only when this is 'reasonable in all the circumstances' and after at least 24 hours' written notice to each student's parent/guardian.
Corporal punishment is not a legitimate sanction.
Refusing to teach a pupil or student
Sometimes an incident is so serious that staff may collectively consider refusing to teach the pupil concerned. Refusal to teach, supervise or have other professional contact with the pupil is a form of industrial action. It is a last resort and ATL should always be consulted for advice, assistance and approval before the decision to refuse is taken. Action taken along with other unions is often the most effective.
Need further advice?
Your first point of contact is your ATL rep in your school or college. Your local ATL branch is also available to help with queries, or you can contact ATL's member advisors on tel: 020 7930 6441 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.