Policies, Practices & Procedures – how to avoid litigation

Introduction Margaret Gorman – Solicitor with Eversheds, 1 Earlsfort Centre, Earlsfort Tce., Dublin 2 ( ) Gerry O’Toole, Senior Claims Manager, Allianz Pat Goff – Principal, Scoil Mhuire, Coolcotts, Wexford

Your Issues What are your issues that you want addressed today?

Introduction It is essential that insurance cover is in place. The risk of litigation can be minimised but not totally avoided It is vital to have policies, to review them and to adhere to them as well as legislation and other legal requirements

Introduction Principals expose themselves when acting in what they consider the best interests of the school but without the necessary legal authority If policies are correct and properly applied, they protect the Board of Management (BoM) and the principal.

Six Steps to Avoid Litigation 1. A properly constituted and functioning BoM 2. Understanding roles & responsibilities 3. Compliance with the law, policies and procedures 4. Employment practices 5. Good communication 6. Record keeping.

Properly Constituted BoM The Constitution of Boards & Rules of Procedure document 2011 sets out the requirements regarding the composition of and functioning of the BoM.

Understanding Roles & Responsibilities BoM manages the school on behalf of the Patron It must comply with ministerial policy, i.e. legislation, Rules for National Schools and circulars It must act as a unit. It is a corporate body, the members do not represent their constituents It is required to ensure that confidentiality is maintained and conflicts of interest avoided.

The Principal is responsible for the day to day management of the school is the leader both of learning and the school community is a member of the BoM and an employee of it can be the secretary to BoM but cannot be Chairperson or Treasurer role is set out in Circular 16/73 and S.23 Education Act

Good Communication BoM itself e.g. it must meet at least once per term and not less than five in a school year-preferably more Wider school community-required to consult on certain policies Communications policy is not mandatory but probably should be

Compliance DES has increased vigilance e.g. compliance with the staffing schedule Increased number of Audits on Building Programmes, Sick Certs, Revenue, etc. Schools are charities. A charity regulator is to be appointed this year

School Policies Must conform to any DES/other requirements e.g. child protection procedures There must be consultation with the school community Polices must be ratified by BoM They must be regularly reviewed and updated Adherence to the policy is vital. Exceptions should not be made for special cases eg in the application of the enrolment policy

Mandatory Policies Good Practice Policies Following Proper Procedures Areas causing greatest concern, incl. Data Protection, Employment, Contracts, Family Law, Parental Complaints, Disciplinary Procedures Policies

Mandatory Policies Admissions Policy (with provision for special education needs-S.15(2)(d) Education Act) Code of Behaviour (S.23 Education Welfare Act & NEWB “Guidelines” for Schools) Anti-Bullying Policy-Circular 45/2013 & DES Procedures Child Protection Policy-Child Protection Procedures & Circular 65/2011 Health & Safety-Safety, Health and Welfare at Work Act, 2005

Mandatory Policies Accidents/injuries (Safety, Health and Welfare at Work Act, 2005) Disciplinary & Grievance Procedures (Unfair Dismissals legislation & Education Act) School Plan (s.21 Education Act) Access to records (S.9-Education Act )

Policies which are effectively Mandatory Data Protection & associated policies Equality Harassment (Employment Equality Act 1998/SI208/2012) Communication

Child Protection The school must have a Child Protection Policy and also a copy of Children’s First Guidelines Each Staff member must have a hard copy of the schools child protection policy -many teachers find that it is good practice to include this in their planning folder, esp. as inspectors frequently ask for it. The names of the Designated Liaison Person must be displayed in public Child Protection should be on the agenda for the first staff meeting of the year & must be on the Agenda for every BoM meeting Withholding of Information Act

Enrolment/Admissions The school must have enrolment policy Criteria must be specified, in the event of over subscription. These criteria should outline the hierarchical order that applies to enrolment & may include: Parish or specified catchment area Siblings Religion, eg., catholic children in the parish…. Children of current teaching staff Priority to eldest

Enrolment/Admissions School must publish its criteria which must be legitimate, reasonable & fair School must notify parent in writing if the school is refusing to enrol pupil and must also advise parents of right of appeal. There is new draft legislation with some significant changes incl. Limited time for waiting lists (Oct 1 st of previous year) Possible Limit of 25% on children of past pupils Designation by NCSE & NEWB New Appeal mechanism

Code of Behaviour Aims & Expectations Rights & Responsibilities – pupils,parents,staff Strategies to affirm positive behaviour Strategies & Sanctions for dealing with misbehaviour Roles of BoM, Principal, Teachers… Authority to Suspend: The BoM has the authority to suspend a pupil. Where this authority is delegated to the principal, the delegation should be done formally and in writing

Code of Behaviour Suspension should be a proportionate response to the behaviour that is causing concern, such as: 1. The student’s behaviour has a seriously detrimental effect on the education of other students 2. The students continued presence in the school constitutes a threat to safety 3. The student is responsible for serious damage to property In exceptional circumstances suspension may be immediate

Code of Behaviour Schools are required by law to follow fair procedures when proposing to suspend or expel a student. Fair procedures have two essential parts: 1. The right to be heard 2. The right to impartiality Expulsion of a student is a very serious step and one that should only be undertaken by the BoM in extreme cases of unacceptable behaviour.(See page 80 of NEWB Guidelines)

Anti-Bullying Policy All Board of Managements must formally adopt and implement an anti- bullying policy that fully complies with the new procedures Sept Key principles incl. a positive school culture and climate, effective leadership, a school wide approach… Process is as important as the product

Anti-Bullying Policy Template to be completed for Anti- Bullying Policy Report to BoM at least once a term setting out number and actions taken… Annual review by BoM using standardised checklist. Part of WSEs, esp. the actions taken to create positive school culture

Health & Safety 5 Steps to a safety statement 1. Identify the risks 2. Assess the risks – The likelihood of the harm occurring and the severity of the consequences if it does arising from those hazards 3. Select the control measures – what can be done to eliminate hazards and if not to reduce risks 4. Write the safety statement 5. Record & review annually

Health & Safety Every employee shall, while at work, ensure that he or she is not under the influence of an intoxicant as required by Section 13 of the Safety, Health and Welfare at Work Act, 2005 The aim of a substance use policy in school is primary prevention

Employment Contracts Ancillary Staff SNAs Teachers Circular 64/2013 – Reduction in the Service Qualification Requirements for Entitlement to Assessment for a Contract of indefinite Duration for Teachers under Circular 82/2007 Circular 0082/2007 – Protection of Employees (Fixed Term Work) Act 2003 – Revised Agreement

Family Law Data Protection & Freedom of information request for child records Guardians, Signatories for Enrolment Form Court orders Responses to Enquiries

Grievance Procedures Parental Staff There are national procedures agreed between Unions, Management & DES which must be followed.

Disciplinary Procedures DES circular 60/2009 Section 24(3) Education Act 1998 Teachers – Professional Competence Issues Other Disciplinary Issues Principals – Professional Competence Issues Other Disciplinary Issues

Procedures - Stages CompetenceOther Disciplinary Issues Stage 1Informal Informal Stage Stage 1Verbal Warning Stage 2FormalStage 2Written Warning Stage 3External ReviewStage 3Final Written Warning Stage 4HearingStage 4Formal Hearing – BoM Action AppealStage 5Appeal

Following Correct Procedures Enrolment,Admissions & Discharge Suspensions & Expulsions Appointments Accident Reporting – Health & Safety Grievance Procedure Disciplinary Procedure Adequate Supervision

Record keeping Record keeping is vital Records must be kept in accordance with data Protection requirements, FOI may be relevant When making notes/records-always keep in mind that these may be accessed by a third party

Developments Admissions Bill The proposed appointment of a charity regulator Circular 64/2013-reduction in the service requirement for a contract of indefinite duration Commencement of S.30 of the Teaching Council Act School Uniforms-Circular 63/2013 Tax Compliance-Circular 51/2013 Minor Works Grant-62/2013

Don’t Panic Take advice Follow procedures Notify insurers Legal advice may be necessary When an Issue Arises

Questions Margaret Gorman – Solicitor with Eversheds, 1 Earlsfort Centre, Earlsfort Tce., Dublin 2 ( ) Gerry O’Toole, Senior Claims Manager, Allianz Pat Goff – Principal, Scoil Mhuire, Coolcotts, Wexford