Transcript Slide 1

CEIST CONFERENCE
Current Legal Issues
David Ruddy BL
SEPTEMBER 30TH / OCTOBER 1st 2010
Admission/Participation policies
Section 29 appeals
 Education Act 1998
 Section 15(2)(d)
 “A Board shall publish an admissions policy”
Education Welfare Act 2000
section 19
 (1)Refusal must be in accordance with the admissions
policy
 (2)School entitled to be supplied with all relevant
information in application form
 (3)BOM communicates decision within 21 days
Refusing admission in exceptional
circumstances
 The student has special needs such that, even
with additional resources available from the DES,
the school cannot meet such needs and/or
provide the student with an appropriate
education
 Student poses unacceptable risk to other
students/staff/school property
Section 29 Appeals against BOM decisions
 Expulsion
 Suspensions for 20 days or more
 Refusal to enrol
Westmeath VEC v Sec General DES & Section 29
Appeals Committee
High Court 2009
 VEC school refuses enrolment for a “transfer”
application
 Right of appeal committee to over turn/rewrite
admissions policy
St Mologas NS Balbriggan v Sec General DES & Section
29 Appeals Comm High Court 2009
 Appeals Comm no rt to reverse decision of BoM
 Comm not a placement agency
 Function to ensure refusal was in accordance
with valid enrolment policy
Mr&Mrs X v a Boys National school
Equality Authority 2009
 Boys school & co educ autistic unit
 School refuses to enrol non autistic girl
 Action for discrimination fails
Codes of Behaviour/ The New
Guidelines 2008
 Section 23(3) Education Welfare Act 2000
 National Educational Welfare Board (NEWB) obliged
to publish guidelines
 Clarifies issues for schools
Murtagh v BOM of St. Emer’s Primary School
(High Court & Supreme Court) 1991
 “ Discipline in a school is a matter for the Teachers,
Principal, Chairperson of BOM, & the Board itself; not
a matter for the courts whose function at most is to
ensure that the disciplinary complaint was dealt with
fairly”
Responsibility of Board of Management
(BOM)
 Policy and procedures must be in place for
suspensions/expulsions
 Pupils/parents aware of the policy
 All staff aware of fair procedures
Sanctions
 Appropriate to age and development stage of pupil
 Should not impact disproportionately on
particular groupings i.e. members of the travelling
community, special needs pupils and international
pupils.
 Importance of pupils’ understanding the purpose
of sanctions
Special Educational Needs Pupils
 The code should be flexible enough to allow for
implementation of individual behavioural
management plans but, in the case of gross
misbehaviour or repeated instances of serious
misbehaviour when the safety and duty of care to
others is at issue, the code takes precedence.
Mrs A (on behalf of her son B) v A Boys National school
Equality Authority 2009
Parents of autistic boy fail to prove discrimination by
school in relation to discipline
Applying sanctions to misbehaviour
outside school
Student A and Student B
V
A Dublin Secondary School
High Court 1999
 must be a clear connection with the school and a
demonstrable impact on it’s work before code of
behaviour applies
The period of suspension
 Guidelines recommend the following
options/possibilities for BoM
 Principal - 3 days
 Principal - 5 days (approval of Chairperson)
 BoM should put a ceiling of 10 days max in
relation to particularly serious incident
Grounds for suspension
 Proportionate response to behaviour that is causing
concern
 Seriously detrimental effect on education of other students
 Threat to safety
 One single incident of serious misbehaviour may be
grounds for suspension
Forms of suspension
 Immediate suspension
 Automatic suspension
 Rolling suspension X
 Informal or unacknowledged suspension/voluntary
withdrawal X
 Open-ended suspension X
Fair procedures based on the
principles of natural justice
(1) The right to be heard
 Rt to know what was alleged misbehaviour
 Rt to respond
 If possibility of serious sanction, rt to be heard by BoM
 Absence of bias
State
(Smullen & Smullen)
V
Duffy
1980 High Court
No automatic right to legal representation at BOM
meetings
Expulsion

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
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Authority to expel should be reserved for the BOM
This authority should not be delegated
Seek assistance of support agencies , NEWB,NEPS
Legal advice
Grounds for expulsion
 Behaviour is persistent cause of significant
disruption to the learning of others or to the
teaching process
 Continued presence of pupil constitutes a real and
significant threat to safety
 Pupil responsible for serious damage to property
Automatic/expulsion for first offence
• BOM can impose automatic expulsion for certain
prescribed behaviours
– Sexual assault
– Supplying illegal drugs to other pupils in the
school
– Actual violence or physical assault
– Serious threat of violence against another
pupil or member of staff
Expulsion
"The Shorts Case"
Timothy O Donovan
-VBOM of De la Salle College Wicklow
& (Section 29 Appeal Committee)
High Court Jan 2009
Judge Hedigan
School Discriminates against pupil
"The haircut case“
Mary Knott (on behalf of her son David Knott)
V
Dunmore Community College
January 2009
Equality Officer Decision
Kirpan Case
 Total ban on 12 yr old boy
wearing kirpan
 The school violated an
individual’s freedom of
religion.
Supreme Court of Canada
Mulvey (a minor) v Mc Donagh High Court
2004
 Adopted DES guidelines i.e. bullying definition
must be ;
 repeated
 ongoing
 sustained
Cross Referencing
 The code of behaviour should not be seen as a stand-
alone document
 Anti-bullying policy must be part of code
 Health and safety statement
 Admission/enrolment policy
Time Frame
 It is expected that the process of audit and review will
be completed by September 2010
 Principal’s role is to lead the audit and review and
ensure implementation of the code
Separated parent challenges
School policy on p/t meetings
A
v
A Primary School
Equality Tribunal 2009
Circular 60/99
 Dismissal /suspension of teachers/principal teachers
Section 24(3)
Education Act (1998)
DES Circular
60/2009
PRINCIPALS
TEACHERS
Professional
Competence
Issues
Other
Disciplinary
Issues
Not
Teaching
Class
Professional
Competence
Issues
(Teaching only)
Late
Other
Disciplinary
Issues
(non teaching
activity)
All Ancillary
Staff/Admin
Principals only
School Principal dismissed
 Gertie Mc Nerney
v
 Bom of St.Patrick’s Primary school
 Dromard,Moyne.co.Longford
 Employment Appeals Tribunal 2009
 €55,000 awarded
HAND V LUDLOW (High Court )2009
 Removal of prefab from school
 Maintaining false records
 Manipulation of enrolment figures
 School principal fails to halt disciplinary hearing in
relation to above allegations
HSE V Information Commissioner
(High Court) 2008
HSE must disclose confidential information given by
teachers to social workers