Legal Issues in Schools in Ireland-An Overview

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Law which impacts directly on schools arises from a number of sources including:

  • The Constitution of Ireland
  • Statute (legislation) such as the Education Acts, Data Protection legislation, Safety, Health and Welfare legislation, Equal Status Acts, Teaching Council Act, Education for Persons with Special Educational Needs, Employment legislation.

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In addition, schools must follow procedures set down in various circular letters from the Department of Education and Skills, the Rules for National Schools where not superseded or replaced by legislation.

The Board of Management as employer is obviously bound by the raft of employment legislation which directly affects employers in Ireland.

Seeking Legal Advice

When a problem occurs in or in relation to your school, you have a qualitative decision to make: is the problem sufficiently serious to necessitate seeking legal advice.

Provided the school’s policies and procedures were followed, and these comply with the law and Departmental guidelines, it may not be necessary. However, you do need to be mindful that problems, which initially appear to be minor or innocuous, can blow up into more serious difficulties for the school if the principles of natural/constitutional justice are not followed.

Put simply, these principles are a guarantee of basic fairness of procedures.

Employment Law

One of the areas of law which affects schools most frequently is employment law.

Employment law in Ireland can be quite complex due to the huge body of law which affects employers in Ireland.

The Board of Management as an employer of teachers, special needs assistants, caretakers, secretaries, etc. faces an onerous task. Departmental circulars, employment legislation, common law, and any agreements with trade unions need to be borne in mind in relation to employment issues.

Education Act, 1988

The Education Act, 1988 makes provision for ‘the education of every person in the state, including any person with a disability or who has special education needs..’

Section 15, Education Act, 1988 sets out the functions of the Board of Management:

15.—(1) It shall be the duty of a board to manage the school on behalf of the patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate education for each student at the school for which that board has responsibility.
(2) A board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall—
(a) do so in accordance with the policies determined by the Minister from time to time,
(b) uphold, and be accountable to the patron for so upholding, the characteristic spirit of the school as determined by the cultural, educational, moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objectives and conduct of the school, and at all times act in accordance with any Act of the Oireachtas or instrument made thereunder, deed, charter, articles of management or other such instrument relating to the establishment or operation of the school,
(c) consult with and keep the patron informed of decisions and proposals of the board,
(d) publish, in such manner as the board with the agreement of the patron considers appropriate, the policy of the school concerning admission to and participation in the school, including the policy of the school relating to the expulsion and suspension of students and admission to and participation by students with disabilities or who have other special educational needs, and ensure that as regards that policy principles of equality and the right of parents to send their children to a school of the parents’ choice are respected and such directions as may be made from time to time by the Minister, having regard to the characteristic spirit of the school and the constitutional rights of all persons concerned, are complied with,
(e) have regard to the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society,
(f) have regard to the efficient use of resources (and, in particular, the efficient use of grants provided under section 12 ), the public interest in the affairs of the school and accountability to students, their parents, the patron, staff and the community served by the school, and
(g) use the resources provided to the school from monies provided by the Oireachtas to make reasonable provision and accommodation for students with a disability or other special educational needs, including, where necessary, alteration of buildings and provision of appropriate equipment.
(3) For the avoidance of doubt, nothing in this Act shall confer or be deemed to confer on the board any right over or interest in the land and buildings of the school for which that board is responsible.

 

Section 7, Education Act, 1998 sets out the functions of the Minister which include:

7.—(1) Each of the following shall be a function of the Minister under this Act:
(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,
(b) to determine national education policy, and
(c) to plan and co-ordinate—
(i) the provision of education in recognised schools and centres for education, and
(ii) support services.

 

The functions of the school are set out in section 9:

9.—A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to—
(a) ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for,
(b) ensure that the education provided by it meets the requirements of education policy as determined from time to time by the Minister including requirements as to the provision of a curriculum as prescribed by the Minister in accordance with section 30 ,
(c) ensure that students have access to appropriate guidance to assist them in their educational and career choices,
(d) promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school,
(e) promote equality of opportunity for both male and female students and staff of the school,
(f) promote the development of the Irish language and traditions, Irish literature, the arts and other cultural matters,
(g) ensure that parents of a students, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education,
(h) in the case of schools located in a Gaeltacht area, contribute to the maintenance of Irish as the primary community language,
(i) conduct its activities in compliance with any regulations made from time to time by the Minister under section 33 ,
(j) ensure that the needs of personnel involved in management functions and staff development needs generally in the school are identified and provided for,
(k) establish and maintain systems whereby the efficiency and effectiveness of its operations can be assessed, including the quality and effectiveness of teaching in the school and the attainment levels and academic standards of students,
(l) establish or maintain contacts with other schools and at other appropriate levels throughout the community served by the school, and
(m) subject to this Act and in particular section 15 (2) (d), establish and maintain an admissions policy which provides for maximum accessibility to the school.

 

School Policies

Section 15 (2) (d) of the Education Act, 1998 obliges schools in relation to school policies:

(d) publish, in such manner as the board with the agreement of the patron considers appropriate, the policy of the school concerning admission to and participation in the school, including the policy of the school relating to the expulsion and suspension of students and admission to and participation by students with disabilities or who have other special educational needs, and ensure that as regards that policy principles of equality and the right of parents to send their children to a school of the parents’ choice are respected and such directions as may be made from time to time by the Minister, having regard to the characteristic spirit of the school and the constitutional rights of all persons concerned, are complied with,

 

Code of Behaviour in Schools

Section 23, Education (Welfare) Act, 2000 sets out the school’s obligations in respect of a code of behaviour for schools:

23.—(1) The board of management of a recognised school shall, after consultation with the principal of, the teachers teaching at, the parents of students registered at, and the educational welfare officer assigned functions in relation to, that school, prepare, in accordance with subsection (2), a code of behaviour in respect of the students registered at the school (hereafter in this section referred to as a “code of behaviour”).
(2) A code of behaviour shall specify—
(a) the standards of behaviour that shall be observed by each student attending the school;
(b) the measures that may be taken when a student fails or refuses to observe those standards;
(c) the procedures to be followed before a student may be suspended or expelled from the school concerned;
(d) the grounds for removing a suspension imposed in relation to a student; and
(e) the procedures to be followed relating to notification of a child’s absence from school.
(3) A code of behaviour shall be prepared in accordance with such guidelines as may, following consultation by the Board with national associations of parents, recognised school management organisations and trade unions and staff associations representing teachers, be issued by the Board.
(4) The principal of a recognised school shall, before registering a child as a student at that school in accordance with section 20 , provide the parents of such child with a copy of the code of behaviour in respect of the school and may, as a condition of so registering such child, require his or her parents to confirm in writing that the code of behaviour so provided is acceptable to them and that they shall make all reasonable efforts to ensure compliance with such code by the child.
(5) The principal of a recognised school shall, on a request being made by a student registered at the school or a parent of such a student, provide the student or parent, as the case may be, with a copy of the code of behaviour in respect of the school concerned.

It is worth noting that the Principal may make it a condition of enrolment that the parents confirm in writing that the code of behaviour is acceptable to them.

Note what the Courts have had to say in relation the enforcement of discipline in schools in Murtagh v Board of Management of St Emer’s National School [1991] which was a High Court case appealed to the Supreme Court:

The enforcement of 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.

Section 21 of the Education (Welfare) act, 2000 deals with school attendance records:

21.—(1) The principal of a recognised school shall cause to be maintained in respect of each school year a record of the attendance or non-attendance on each school day of each student registered at that school.

Information from Schools to Parents

A number of acts place obligations on schools in relation to providing information about pupils:

  • The Education (Welfare) Act, 2000-section 20 states
(5) The principal of a recognised school shall, on receiving a notification under subsection (3) in relation to a child, notify the principal of the school first-mentioned in that subsection of—
(a) any problems relating to school attendance that the child concerned had while attending the second-mentioned school referred to therein, and
(b) such other matters relating to the child’s educational progress as he or she considers appropriate.

Section 28 states: The data controller of a prescribed body may supply personal data kept by him or her, or information extracted from such data, to the data controller of another prescribed body if he or she is satisfied that it will be used for a relevant purpose only.

  • The Education Act, 1998-section 9 states (g) ensure that parents of a students, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education,
  • Data Protection Acts 1998 and 2003

Tbe Freedom of Information Act 1997 and Freedom of Information (Amendment) Act 2003 do not apply directly to national primary schools as this legislation applies to public bodies.

However, schools need to be aware that bodies with which you may share information such as the HSE and the Department of Education and Skills are subject to FOI legislation so information shared with these bodies may be made available by these bodies.

Health and Safety

Health and safety legislation in Ireland is extensive and detailed with the Safety, Health and Welfare at Work Act, 2005 being the most important piece of legislation.

Common Law Duty of Care

Schools have a duty of care under common law to staff and other persons who may come into contact with the school. Schools also have  duty of care to pupils as they have been held to act in loco parentis.

Equality and Discrimination

The Equal Status Act, 2000, section 7 allows schools to discriminate on 2 broad grounds, namely

  • Single sex schools
  • Religious ethos.
(3) An educational establishment does not discriminate under subsection (2) by reason only that—
(a) where the establishment is not a third-level institution and admits students of one gender only, it refuses to admit as a student a person who is not of that gender,
(b) where the establishment is an institution established for the purpose of providing training to ministers of religion and admits students of only one gender or religious belief, it refuses to admit as a student a person who is not of that gender or religious belief,
(c) where the establishment is a school providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school,

However, schools need to be careful that their refusal to admit a child is essential to maintain the ethos of the school.

The Equality Tribunal has indicated that proving that one child’s admission to a school could disturb or threaten the religious ethos could be problematic, depending on the circumstances and facts of the situation.

Enrolment Policy

Enrolment in a school can only be refused in exceptional circumstances.

And these circumstances need to be truly exceptional.

An appeal to the Secretary General of the Department of Education and Skills under section 29, Education Act, 1998 is open to the pupil’s parents (or to the pupil if he/she has reached the age of 18) or to the National Education Welfare Board.

Children with special educational needs enjoy the presumption of mainstreaming and schools are obliged to make reasonable accommodation for such pupils. Schools would also be expected to seek and avail of the necessary supports from the State.

Section 2, Education for Persons with Special Educational Needs Act 2004

2.—A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with—
(a) the best interests of the child as determined in accordance with any assessment carried out under this Act, or
(b) the effective provision of education for children with whom the child is to be educated.

 

Schools can only exclude such pupils where the provision of education to other pupils is rendered impossible.

Section 14 sets out the duty of schools:

14.—(1) The board of management of a school shall—
(a) ensure that section 2 is complied with as respects that school,
(b) ensure that parents of a student with special educational needs are—
(i) informed of their child’s needs and how those needs are being met, and
(ii) consulted with regard to, and invited to participate in, the making of all decisions of a significant nature concerning their child’s education.
(c) co-operate to the greatest extent practicable with the Council and its employees and, in particular, provide to the Council such information as the Council may from time to time reasonably request for the performance by it of its functions,
(d) ensure that all relevant teachers and other relevant employees of the school are aware of the special educational needs of students.
(e) ensure that teachers and other relevant employees of the school are aware of the importance of identifying children and students who have special educational needs, and
(f) inculcate in students of the school an awareness of the needs of persons with disabilities.
(2) Subsection (1) is in addition to, and not in substitution for, any other enactment imposing duties on boards of management of schools.
(3) Any person (other than a school) who or which provides education to persons with special educational needs, being a person funded in whole or in part from moneys provided by the Oireachtas, shall provide to the Council such information as the Council may from time to time reasonably request for the performance by it of its functions.
(4) A request under subsection (1)(c) or (3) shall be complied with within such period (not being a period longer than 1 month from the date of the request) as the Council specifies in the request.

 

Section 4 of the Act provides for assessment of a child by the HSE or the National Council for Special Education. Parents can be compelled a Circuit Court order to have their children assessed.

Section 29 of the Education Act, 1998 Appeals

Section 29, Education Act, 1998 allows

29.—(1) Where a board or a person acting on behalf of the board—
(a) permanently excludes a student from a school, or
(b) suspends a student from attendance at a school for a period to be prescribed for the purpose of this paragraph, or
(c) refuses to enroll a student in a school, or
(d) makes a decision of a class which the Minister, following consultation with patrons, national associations of parents, recognised school management organisations, recognised trade unions and staff associations representing teachers, may from time to time determine may be appealed in accordance with this section,
the parent of the student, or in the case of a student who has reached the age of 18 years, the student, may, within a reasonable time from the date that the parent or student was informed of the decision and following the conclusion of any appeal procedures provided by the school or the patron, in accordance with section 28 , appeal that decision to the Secretary General of the Department of Education and Science and that appeal shall be heard by a committee appointed under subsection (2).

When a school communicates its decision to the parents which gives rise to an appeal, the parents must be advised of their refight to appeal under section 29.

Prior to the hearing of any appeal, there is a facilitation process, which generally lasts for around one week, which aims to reach agreement at local level.

Factors which may be considered by the Appeal Committee include

  • Practices within the school
  • The operation and management of the school
  • The policy of the Patron/Board in relation to ethos
  • The educational interests of the pupil
  • The educational interest of other pupils in the school
  • Any resource issues arising from the decision which is being appealed
  • The reasonableness of the school’s efforts to help pupils
  • Safety, health and welfare of students and teachers
  • School policies re code of behaviour, enrolment, etc.

The decision of the Appeal Committee is binding on the Board of Management.

By Terry Gorry Google+

Education Law Brochure

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