Schools often believe that the preponderance of policies and procedures they have in place will protect them when things go wrong. But as Richard Bird discovers, this is not necessarily so...

Policy excess

It would have been interesting for an educational researcher if a school could have operated for the last 20 years without any policies about anything.

The policy-free school could have been compared with a school that had put in place every policy that statute and regulation had imposed.

Research questions may have been, “Were children safer because there was a child protection policy?”, “Was there more community cohesion because there was a community cohesion policy?” and “Were teaching and learning any better because there was a teaching and learning policy?”

The law of diminishing returns may be said to apply here. If there are one or two policies only, they may have an effect on day-to-day work. it would take three years or more of teacher days and staff meetings to work through them all, they may be less influential. And there lies a danger.

Negligence claim

Schools and colleges seem to have developed policies and related procedures for four reasons. First, because someone has told them that they must. To his credit, the present secretary of state appears to be trying to cull some of these directions from government. Second, because “Ofsted will be looking for it.” Third, because it is useful for holding colleagues to account. And fourth, “Because we live in a litigious age and if we have a policy no one can sue us”.

If there is an allegation of negligence then the two critical issues that will determine the case are “Was it foreseeable?” and “What did you do to prevent it from happening or to mitigate the consequences?”

‘Foreseeable’ does not cover every conceivable circumstance that misfortune can devise. In a recent case, for example, the judge ruled out negligence over an occurrence that he described as “a mere possibility which would never influence the mind of a rational man”. But if it is within the bounds of rational possibility, then the school or college needs to take steps.

Conversely, however, if the school or college has a protective policy, then it follows that the problem was foreseeable. The policy and the procedures that flow from it are presumably the prevention and mitigation. And it is the procedures that matter.

The cautionary tale of a primary school demonstrates. The school identified a potential danger to pupils from footballs kicked around in the school playground before school. It introduced a policy that said they should not be. But the rule was enforced erratically, if at all.

Inevitably, someone was injured exactly as anticipated and the school was sued. The legal consensus was that, given that it was the first actual known incidence of a pupil being hurt in this way, the school would have stood a better chance in the ensuing proceedings if they had had no policy on the matter at all. At least then, they could have argued that it was unforeseeable.

Reasonable adjustment

A similar problem arose from the excellent disability policy that the clothing firm Abercrombie & Fitch had on file. Unfortunately, on file was where it stayed and it was no protection when a disabled employee initiated proceedings because a local manager, who had not given the policy much attention, seemingly felt that the employee’s disabled arm did not fit the company image and effectively banished her to the stockroom.

The same applies to reasonable adjustments for disability. It is no good just thinking about an adjustment or promising to introduce it or introducing it inconsistently. A person with a mental disability who was promised a regular desk in a hot-desking work place won his case against his employer when that promise proved impossible to keep. The law is interested in what happens, not good intentions.

A school or college may imagine that by getting staff to sign that they have read a crucial policy it is protected. It isn’t. A signature may give the school’s management the doubtful pleasure of being able to discipline a member of staff for not following the policy, but it will not protect the school from the law, unless there are demonstrable reasons why the school could not have prevented the member of staff from doing whatever it is the policy bars or could not have prevailed on the member of staff to do whatever it is that it recommends.

Policies, procedures and checklists are often put in place to protect the organisation as much, or more, as they are put in place to protect young people. But as Professor Eileen Munro explained in her recent reports on child protection, what really protects children are professional judgement and professional alertness.

It is the development of professionalism, not the existence of policies, which, in the end, makes schools and colleges less vulnerable.

• Richard Birdis ASCL’s legal specialist
  

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