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HCR Law Events

20 August 2021

What is the role of the head teacher in an exclusion decision?

On many occasions, inappropriate behaviour by pupils at school can be dealt with by way of detention, a letter home or other low-level sanction. However, in some instances poor behaviour is so serious that it may warrant exclusion.

Here Emma Swann and Coral Peutrill look at the factors head teachers must take into consideration when making a decision and offers guidance on good practice.

What does the law say about pupil exclusions?

When it comes to whether a pupil should be excluded from school, only the head teacher can make this decision. The decision must be taken on disciplinary grounds. Importantly, the head teacher can issue an exclusion based on the behaviour of a pupil not just inside school, but also outside school. We would recommend that this is clearly set out in the school’s exclusion policy.

It is important to follow the correct procedure to ensure that an exclusion is not technically invalid and risks being overturned.

A pupil can be excluded for either a fixed period (including just for part of the school day) or, in more serious circumstances, permanently. Any number of fixed period exclusions may be given to a pupil in an academic year, but the total number of school days on which the pupil is excluded should not exceed 45 school days. Unofficial exclusions, including sending a pupil home to ‘cool off’, are unlawful and Ofsted has focused on this in recent years. Any exclusion of a pupil, even for a short period of time, must be formally recorded.

Head teachers should keep in mind that they cannot exclude a pupil for a fixed term and then choose to extend the term or convert it into a permanent exclusion. However, if further evidence comes to the head teacher’s attention, a further fixed period exclusion can be issued to follow on from the current period. A permanent exclusion may also be issued to commence after the end of a fixed period.

Notifying a pupil’s parents of the exclusion

After deciding that a pupil should be excluded, the head teacher must notify the pupil’s parents of the exclusion and the reason for it without delay.

The notification must be provided in writing and include:

  • details of the parents’ rights to make representations to the governing board
  • how such representations should be made
  • the parents’ right to attend and be represented and to bring a friend if the governing board is required to consider the exclusion.

If the pupil is of compulsory school age the parents should also be notified of the days on which they must ensure that the pupil is not present in public during school hours. If the parents fail to comply with this duty without reasonable justification, an offence is committed and a fixed penalty notice may be issued, or the parents may be prosecuted. The headteacher should provide this information to the parents by the end of the afternoon session on the day of exclusion at the latest.

In order that the parents have an opportunity to ask any questions or raise concerns directly with the head teacher, they should initially be notified in person or by telephone. A written notice should then follow as soon as possible.

Notifying the governing board and local authority

As well as notifying the parents of the exclusion, the head teacher also has a duty to notify the school’s governing board and the local authority of:

  • a permanent exclusion
  • an exclusion which totals more than five school days (or ten lunchtimes) in a term
  • an exclusion which results in the pupil missing a public examination or national curriculum test.

The notification must include the reason for the exclusion and the duration if it is a fixed period exclusion. Once each term the head teacher must also notify the local authority and governing board of any other exclusions which have not already been notified to it.

In addition to the power to issue an exclusion, the head teacher may withdraw an exclusion where it has not been reviewed by the governing board.

Factors to take into consideration when considering exclusion

There are several factors for the head teacher to consider when deciding whether to exclude a pupil. They should be satisfied that the decision complies with the principles of administrative law, meaning that it must be lawful, rational, reasonable, fair and proportionate.

The school should therefore ensure that its policies and practices do not unfairly increase any pupil’s risk of exclusion. In respect of disabled children, there is an additional duty to make reasonable adjustments to policies and practices and the provision of auxiliary aids.

There are additional considerations in respect of permanent exclusion. The decision to permanently exclude a pupil can only be taken in response to a serious breach, or persistent breaches, of the behaviour policy by the pupil and if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others.

For both a fixed term and permanent exclusion, the pupil should be given an opportunity to present their case before a decision is made to exclude them where it is practical to do so. The head teacher should consider any contributing factors that are identified after an incident of poor behaviour has occurred, such as where the pupil has suffered bereavement, has mental health issues or has been subject to bullying. However, despite these considerations the head teacher may still decide that exclusion is an appropriate sanction.

The importance of behaviour policies and early warning systems

Schools should make sure that they have a clear behaviour policy in place so that the head teacher can make a clear and well-informed decision when considering whether a pupil should be excluded from school. This behaviour policy should be clearly communicated to all staff, pupils and parents. In addition, schools should set in place systems to help to identify any pupils who are demonstrating frequent poor behaviour, as there may be underlying causes which the school should identify and provide support to the pupil.

Implementing exclusion as a sanction for poor behaviour should be done following careful consideration and in accordance with the relevant guidance.

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About the Authors
Emma Swann, Partner, Head of Academies

Emma Swann is a Ross-on-Wye solicitor, specialising in commercial.

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