News and guidance

In the last ASCL membership survey, you told us that you wanted to know more about how we are working to influence national education policy. Therefore, from now on we will provide regular updates of meetings and lobbying activity.

Here are the highlights of whom ASCL has met with over the last few weeks:

Labour Party call for parent power

Following the unfortunate headlines in the media about the Labour Party’s call for more powers for parents, ahead of a major speech by Ed Miliband, Brian Lightman was in immediate contact with the office of Tristram Hunt MP to express ASCL’s concerns and met with Mr Hunt’s policy adviser in the afternoon. Although the actual message had been distorted in the headlines, Brian strongly emphasised the need for any political party seeking election to demonstrate its willingness and ability to work with and not against the teaching profession.

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Post-16 performance tables

ASCL officers met with officials from the DfE to discuss the proposed content of the 16–19 performance tables for 2016. A number of suggestions were made about the proposed five top-line measures, including that GCSE maths and English attainment is referenced to students starting with a grade ‘D’. This would then be consistent with Education Funding Agency (EFA) guidance.

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Youth Sport Trust Annual Conference

ASCL Deputy General Secretary, Malcolm Trobe, spoke about the challenges for secondary school leaders on the same platform as Ofsted’s Director of Schools Mike Cladingbowl at the annual conference of the Youth Sport Trust.

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Ofqual

Brian Lightman and Malcolm Trobe met with Glenys Stacey, Ofqual’s Chief Executive, and Jeremy Benson, Director of Policy at Ofqual, at ASCL headquarters to discuss progress across a range of qualifications issues.

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Election 2015

Brian Lightman, Malcolm Trobe and ASCL Director of Policy, Leora Cruddas, met with David Laws in his capacity as the Liberal Democrat MP leading his party’s education policy for the election. They discussed ASCL’s manifesto priorities for 2015 and how these align with Liberal Democrat policy. As part of ASCL’s election strategy, officers are meeting with senior education figures across the three main political parties.

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School leadership policy

Malcolm and Leora met the head of the DfE’s School Leadership Unit to follow up the successful round table on school leadership with David Laws before Christmas. ASCL’s Professional Committee prepared a position paper at Council in February on key issues of leadership policy. This will aim to influence DfE policy on headteacher supply, professional development, middle leadership and schools in challenging circumstances. The DfE and the minister have indicated their intention to work with us in developing leadership policy.

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College issues

Malcolm and Colleges Specialist Stephan Jungnitz met with David Russell, the newly appointed Chief Executive of the Education and Training Foundation, to discuss the work of the foundation and to raise a number of issues concerning our college members.

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Ofqual

ASCL General Secretary Brian Lightman was quoted in several national newspapers including The Guardian and FE Week and on BBC News Online in response to Ofqual’s report into the quality of marking. Brian stressed that Ofqual’s report is a step in the right direction to further improving the quality of marking but that any suggestions that teachers are ‘gaming’ the appeal system are unhelpful and inaccurate.

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Discipline

ASCL President Ian Bauckham was interviewed on Sky News about discipline in schools following suggestions from the Secretary of State Michael Gove that teachers need to get tougher on pupils. Ian highlighted that 84 per cent of schools are already judged ‘good’ or ‘outstanding’ on behaviour and that many of the ideas suggested by Mr Gove were already being implemented by schools.

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School Teachers’ Review Body (STRB)

The Guardian quoted ASCL General Secretary Brian Lightman following the release of the latest School Teachers’ Review Body (STRB) report. Brian said that teachers’ time was best spent on professional duties, such as preparing lessons and assessing pupils’ work, rather than on routine jobs that could be carried out by support staff. “We do not expect the change in wording to make any difference to the working lives of teachers or the day-to-day role of support staff,” Brian said.

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Following the publication in February of Ofqual’s report on the quality of marking, ASCL issued a news release reiterating that Ofqual must acknowledge the pressures that schools and students are under to make the grade.

Brian Lightman, ASCL General Secretary, said: “Ofqual must recognise that schools and young people are under enormous pressure from the accountability system to get ‘C’ grades. Where students are one or two marks short and schools think that there might be a chance of them being upgraded, they will appeal. After all, it is a school’s duty to help students get the best grade by asking for a second opinion. Schools are not ‘gaming’ the system, but acting in the best interests of young people and it is vital that Ofqual recognises this and acts accordingly.

“The fact that we cannot currently compare the quality of marking of qualifications and subjects between exam boards is clearly another area that needs addressing.

“Large inconsistencies or marking errors can have significant consequences for the students affected and the current appeals system does not enjoy the confidence of schools and colleges especially after the GCSE problems where borderline students have seen lots of examples of grades being changed. We hope that, following this report, these will now be addressed.

“ASCL recognises that the enquiries about results and the appeals system need changing. However, we are disappointed that the report gives no indication of the importance of engaging with school leaders on proposed changes. Changes must be fair to all candidates and the right to appeal against an initial decision must be retained.

“Marking schemes are a very important aid to teachers as they prepare candidates for examinations and we welcome plans to improve the marking scheme design. There are many highly skilled senior examiners and it is good to see that the report emphasises the need for examination boards to continue to professionalise the roles of their examiners.

“There remains a need to improve the understanding of teachers and the general public about how the marking processes work. Both Ofqual and the awarding bodies need to take a lead in this.”

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This new conference at the International Convention Centre (ICC) in Birmingham, organised by CfBT, ASCL and NAHT, invites leaders and aspiring leaders of education from across the UK and internationally to take part in a vibrant programme. World-class speakers, including Sir Michael Barber, Dr Yong Zhao, Professor Andy Hargreaves, Dr Avis Glaze and Steve Munby bring a wealth of experience and expertise across the sector. They will be joined by speakers from the arts, business and sport to deliver a truly memorable and of course inspiring event.

The conference will provide delegates with concepts and ideas to take back and implement in the workplace, as well as offering valuable time away from the work environment to be challenged, motivated and moved.

Delegate places are selling rapidly, so please see online at https://leadership2014.sym-online.com/conference to secure your place now. For anyone wishing to exhibit, also follow the link to get in touch with the conference organiser.

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ASCL membership exceeds 18,000

ASCL membership continues to grow and strengthen along a steady pace and we are pleased to announce that we now have more than 18,000 members.

ASCL is the only union exclusively to speak for secondary school and college leaders. Our membership includes more than 18,000 secondary school and college leaders, including heads, principals, deputies, vice-principals, assistant heads and business managers. ASCL represents 80 per cent of secondary heads and has members in more than 90 per cent of secondary schools.

Due to the increasing membership and growing demand for ASCL Professional Development training and consultancy, there are several new posts being advertised. For more details, see page 27 or visit www.ascl.org.uk/jobs

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What our members say

 ‘Professional, supportive and respected’ are the words chosen by you that you believe best reflect the ASCL brand. In addition, a recent membership survey revealed a 94 per cent satisfaction rate with ASCL and, in particular, members have said that we continue to perform best in supporting them when they are in difficulty and that we provide high-quality training, advice and guidance. Here are just some of the comments received from our members:

“I would not be without ASCL – over more than 20 years I have had excellent support and advice. It’s worth every penny!”

“I only joined this month, but look forward to the first class support I’ve heard about.”

“I am very pleased with the level of service, information and training opportunities.”

If you have colleagues who are not yet in ASCL and are interested in joining, please direct their attention to our website: www.ascl.org.uk/offers

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ASCL is pleased to announce that General Secretary Brian Lightman has been named as one of the top 500 most influential people in British society. The Debrett’s 500 list is a positive endorsement and recognition of Britain’s most influential people and has been carefully compiled by independent panels of specialists. Brian’s entry in Debrett’s said: As a leader of head teachers, Lightman recognises that his greatest inspiration has been “the young people themselves who often overcome even the most enormous physical, social, or economic barriers to progress to successful and happy lives.”

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Our annual conference is just days away and delegate numbers will once again exceed expectations with more than 1,200 people due to attend – a record number.

As in previous years, we are finding that more and more schools and colleges are sending groups of senior staff, using it as professional development for their extended and senior leadership teams. With a line-up of highly influential and key figures including Secretary of State Michael Gove, Michael Wilshaw HMCI, Shadow Education Secretary Tristram Hunt, ASCL General Secretary Brian Lightman and ASCL President Ian Bauckham, it’s easy to understand why.

If you haven’t been able to secure a place at the conference then don’t worry; you can still be part of the experience by following the whole conference online through a live Internet stream from the ASCL website homepage (www.ascl.org.uk). Why not use the opportunity to provide your leadership team with vital professional development and set time aside to watch some if not all of the conference sessions online. You can also follow all of the conference developments through Twitter @ASCL_UK and by using the hashtag #ASCL2014

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The case of USDAW v Woolworths has been referred by the Court of Appeal to the Court of Justice of the European Union (CJEU). The issue at stake is whether staff are entitled to a protective award of up to 90 days’ uncapped gross salary because Woolworths did not apply the collective redundancy procedure where less than 20 staff were being made redundant in a single store. The rule may apply to academy chains. Academies in chains would be well advised to check with the chain’s legal advisers as to whether it could apply and if it did what the consequences may be.

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The slightly ludicrous newspaper story that it is cheaper to pay independent school fees than to buy a house in the catchment area of a good state-funded school doubtless had some sort of a factual basis. But it does raise the question about the use of catchment areas in admissions. Catchment areas are legal, of course, but increasingly they appear to be causing problems.

A fraud case brought by a county council failed some years ago, and since the use of the Regulation of Investigatory Powers Act 2000 to catch deceiving parents was ruled unlawful, it has been difficult to apply any real sanction to impose fairness.

Urban myths about enterprising homeowners hiring out their in-catchment area premises as addresses of convenience are not entirely mythical. Arguments about whether the distance should be measured as the crow flies or by the nearest practicable route to the front door of the school, or whether the catchment area cunningly omits ‘that dreadful estate’ abound. Schools that wish to be, or whose funding agreements bind them to be, like the Boston Inn in Holyhead, ‘At the Heart of the Community’, may feel that they have no alternative but to operate a ‘closeness to the school’ criterion.

Nevertheless, some schools are now looking at the readiest available alternatives: including a lottery.

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England has not, unlike Wales, embodied the United Nations (UN) Convention on the Rights of the Child (CRC) in its procedures and they have not been embodied in British law.

Nevertheless, certain principles are increasingly becoming part of legal assumptions. The strongest example of this is ‘Gillick competence’ – that is, the assumption that a child at a certain age, which is developmental, not chronological, should have a right to make decisions for himself or herself and to enjoy privacy, even from parents, if there is no illegality involved.

This principle also applies in other areas – for example, in the right of the child to be heard in exclusion hearings and in the right of children beyond compulsory school age to express a preference for the establishment in which their post-16 education should take place. It also applies to younger children.

In a recent case involving the conflicting claims of her parents to decide residence, a 12 year-old child was held to be competent to make a decision as to whether she was sufficiently settled in a country for it to be her habitual residence. In making decisions of this nature a child does not have to be aware necessarily of the full consequences of the action – merely to understand what it is.

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A reminder has been sent out that it is an offence to request a Disclosure and Barring Service (DBS) check on someone when the employer is not entitled to do so. This particularly will apply where a school or college is making use of supervised volunteers. It will be prudent to check the definition of a supervised volunteer before either asking or not asking for a DBS check on an individual.

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‘We live in a litigious society’ has become a cliché of common chatter. Schools and those who run them have been increasingly looking over their shoulders to see whether someone will seek an injunction from a friendly judge who is happy to believe that he or she knows better than the Secretary of State does with respect to whether a school should become an academy, or whether an accident will turn into a claim for negligence.

However, one father in South Africa has gone a step further. He sought a legal ruling re-instating his son as captain of the school First Eleven cricket team. His initial challenge to the school’s decision was embodied in a lengthy correspondence “inappropriately set out in turgid detail on his professional practice letterhead”. Perhaps members may have seen such a correspondence themselves on other topics.

Disappointingly, for those interested in unusual litigation, the judge in the case decided that “interfering with that decision would be an intrusion into the private affairs of the school and would be educationally unsound”. There was no constitutional violation and the court had no power to intrude.

But you never know: A British judge may have a more ambitious view of his or her role.

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The reported case of a six year-old and his brother being allegedly permanently excluded because the six year-old boy had had forbidden substances (‘Mini Cheddars’) in his lunch box raises a number of questions that a court may well find interesting. The reports were that the exclusion was because of a failure by the parents to co-operate with the school’s ‘healthy school’ policy.

This would seem to be clean contrary to the law on exclusions that exclusion should be for a pupil’s offnce and not a parent’s. The parent is in the wrong in not recognising the long-established principle that when a parent sends a child to school that parent passes to the school teacher the rights and powers of the parent.

Similarly, the child would be liable to punishment if, having been told not to eat the ‘Mini Cheddars’; he went ahead and ate them or refused to hand them over to the school. The school is entitled to confiscate them. It may not search for them using force if the pupil insists on keeping the lunch box closed since they are only banned as a result of a school rule and do not fall under the list of statutory items that can be searched for with force without consent.

But while all of this is good law, one may be permitted to doubt whether it is Wednesbury reasonable – a reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it. ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).

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The government’s revised guidance for governing bodies makes one thing very clear: A chair of governors must not arrogate to himself or herself powers that belong to the governing body. There is a very limited set of circumstances where the chair has powers to act alone: for example, in suspending the headteacher, or when there is no time to call the governing body together (as in an exclusion the day before a student is due to take an exam).

In other circumstances, like every other governor or group of governors, the chair has only the powers explicitly delegated to him or her, either by standing orders or by a minuted resolution of the governing body.

As the government pursues a ‘board’ agenda for governors it will be more important than ever to ensure that the clerk makes this absolutely clear to any in-coming chair.

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Leader contains general guidance on the law. If you have a specific legal issue, we recommend that you seek advice from a qualified legal professional.

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The DfE has issued guidance on the use and extent of facility time. This has become an issue for English members in schools with the spread of academies.

The Trade Union and Labour Relations (Consolidation) Act 1992 and the associated Acas code, lays down that there should be ‘reasonable paid time off’ for union duties and ‘reasonable unpaid time off’ for union activities.

The difference between the two is clarified in the code. The entitlement only extends to the employees of a particular employer. When the universal employer of staff in an area was the local authority (LA), this meant that it could all be arranged centrally. Now in England the system is creaking.

The DfE points out that there is a range from, £1 to £5.70 per pupil paid from school funding for union facilities’ time. It suggests that no teacher employed by a school should spend more than one day a week or 50 per cent of time on union duties or activities. It also points out that there is no requirement for an employer to assist a union by ‘checking off’ union dues and that any agreement may be renegotiated unless it has been incorporated into an employee’s terms and conditions.

Clearly, there are can be advantages, not just to ASCL as a representative organisation, but to the smooth management of difficult situations, through the involvement of experienced, trained and sensible union representatives who have enough time to do their job; and there is nothing to stop collective arrangements within an area from continuing to operate.

However, the suggestion from the DfE is that the operation of any scheme should be monitored and evaluated and a code of conduct should apply.

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The Health and Safety Executive (HSE) has issued a little reminder that the Health and Safety at Work poster that must be displayed in every place of work has been revised and the new one must be displayed by April 2014. See the HSE website for more details. www.hse.gov.uk/pubns/books/lawposter.htm

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The ramifications of transfer of undertakings (TUPE) become more and more important as more and more schools find themselves taken over, or voluntarily enter into a relationship with a new employer.

The very long-running case of Hazel and Huggins v Manchester College 2014 [EWCA], shows the complexities. The long and the short of the case is that the Court of Appeal has confirmed that redundancies the college made were for the purpose of harmonising terms and conditions, not for an economic, technical or organisational reason connected with the transfer.

The new TUPE regulations do make harmonisation possible after a year but the harmonisation has to be to a new arrangement that taken as a whole is no worse for the transferred employees. Plenty of scope for litigation there.

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The revelation that free schools are less and less set up and run by parents, and more and more by chains, highlights the increasingly significant role that chains are playing through their contracts with the Secretary of State.

The new proposal by the Secretary of State that academies and free schools should in future be overseen by a regional commissioner advised by ‘outstanding’ heads (or perhaps more correctly, by heads of schools that have been judged by Ofsted in their last inspection to be ‘outstanding’) raises interesting legal questions of potential conflict of interest – even if the role of these headteachers is purely advisory.

It also raises the issue of their duty of fidelity to their employer, if, for example, a school in the same trust was the subject of concern. How these issues will be dealt with, we shall have to wait and see. New legislation is promised by the Blunkett review for the Labour Party: So this may all be academic after the next election – if academic is the right word.

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The Advisory, Conciliation and Arbitration Service (Acas) code for the extension of the right to ask to vary one’s contract so as to work flexibly has been scrutinised by Parliament and is unlikely to be amended. It is therefore worthwhile looking at the detailed guidance and amending school and college policies accordingly. It seems that the commencement of the legislation is likely to be delayed. The assumption had been that it would be in April but there is a feeling that it may be as late as October. Nevertheless, given that it is coming in and that it can take time to change employment policies and work out procedures and principles, it would be prudent to start the wheels rolling as soon as possible.

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An enquiry under the Freedom of Information Act 2000 has revealed that 67 schools lost 10 per cent of their pupils in one year: the year before GCSE. One school apparently lost 20 per cent.

There are many legitimate reasons for rolls to fluctuate: For example, some schools that served service bases in the days when many units were stationed in Germany became used to unexpected and unpredictable rises and falls in rolls according to the needs of the armed forces.

But there have been persistent suggestions that in some cases pupils have been ‘disappeared’ because the school had a target to meet. If this is so, there are legal issues. Under the rules, pupils in a maintained school cannot be asked, advised or ‘leant on’ to leave, for example. The word ‘fraud’ is overused and not often in strict accordance with legal definitions, but in a popular sense, fraud it is.

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