This article was originally published on 22 April 2022

Scenario: A school receives a call from a member of the public about a fight that has broken out between students 40 minutes after the school day ends and at some distance from the school. The caller knew which school they were from because of the uniforms. What is the school’s duty of care position, in legal terms?

The first thing to establish for a scenario like this is that schools have a duty of care towards their staff when they are carrying out responsibilities under their terms of employment.

So, if teachers are instructed as part of their employment - whether during school hours or not - to assume responsibility for students off the school site (for example, a school trip or supervised sporting activities), then the school would continue to have a duty of care towards their employees and the students for whom they have assumed responsibility.

In an example such as this, if the headteacher had instructed school staff members to resolve a conflict off-site, then the school (whether an academy or maintained school) had assumed responsibility for the pupils and therefore continued to have a duty of care towards its staff, however far the incident was from the school, and whether it was during school hours or not.

Given this, we would advise schools not to adopt responsibility for students off-site outside of school hours, in this kind of ad hoc scenario, because of the risk that something might go wrong.

If, for example, a student or staff member were injured or suffered trauma as a result of an event that occurred off-site, for which a staff member had assumed responsibility, then either one of them might be able to bring a claim for damages against the school.

And, if this were to arise, it is not clear whether the school’s insurance would cover such a claim; this would depend on the contract of insurance.

Balancing the risks

We would therefore advise schools to explore this potential scenario with their insurers before instructing staff members to undertake off-site responsibility for students, particularly during non-school hours and in this kind of high-risk situation.

If, on the other hand, the headteacher had asked staff to go and assess the situation and staff, once on the scene, decided to break the fight up, then the staff member would be assuming responsibility for their actions unilaterally and, although context would be relevant, it is less likely, in the event of injury, that a claim for damages made by either the staff member or the student against the school would be upheld.

Of course, though, proving what the staff member had been instructed to do (and what was reasonable for the member of staff to do in the circumstances) might be more difficult.

Following this advice, however, does not mean that the school need do nothing on receipt of such a phone call from a member of the public.

First, we would advise them to call the police, as it is they who should really deal with this sort of incident.

Second, schools’ behaviour policies can extend to disciplining pupils for off-site conduct when they are not under the lawful control or charge of a member of the staff of the school - something that is set out in the Department for Education’s “advice for headteachers and school staff” guidance.

Specifically, paragraphs 92-95 outline that maintained schools and academies’ behaviour policies should set out what the school will do in response to non-criminal bad behaviour and bullying that occurs off the school premises or online.

Setting reasonable expectations

So, in the above scenario, it would likely be considered reasonable to discipline students for misbehaviour off-site during non-school hours when wearing school uniform, and where their behaviour poses a threat to another pupil or member of the public, or could adversely affect the reputation of the school.

But a sanction can be carried out by a paid member of school staff, or a member of staff authorised by the headteacher, only while on the school premises and while the pupil is under the charge of a member of the school’s staff.

So, punishment could not be handed out over the weekend or at the scene of the fight if staff did intervene. Instead, it would have to be dealt with in school and during school hours.

However, if an incident occurs off-site and teachers do not witness it, it will be hard for the school to know exactly what happened and what the appropriate punishments may be.

As such, a headteacher (or staff member authorised by the headteacher), in making a decision to discipline a student, should do so only if they are satisfied that “on the balance of probabilities”, it is more likely than not that an occurrence is true, and they should be able to draw upon evidence, usually from students’ statements (and, in this scenario, possibly police statements), including a statement from the perpetrator.

Of course, in all of this, a school’s actions in disciplining pupils must be lawful, which also means that they must comply with principles of public law, because ultimately, any decision by a state-sector school could, in principle, be judicially reviewed.

Overall, a situation like the one outlined at the start is a tricky area for schools, and one that leaders should familiarise themselves with in terms of their duties, their behaviour policy, their insurance and government guidelines to ensure that they are clear where their responsibilities lie - and where they do not.

Elizabeth Fortin is associate solicitor at law firm Stone King