A teacher in the UK has had his employment terminated, and now has a criminal record, after he tapped the back of an unruly pupil’s head during class.

The case, as reported by the media, was decided on its particular facts, which included a clear admission of guilt and a parent with previous grievances against the school. However its outcome, and the issues it raises, presents an important lesson for Australian schools.  Any incident involving a teacher's mistreatment of a student will raise a variety of complex legal issues including those associated with child protection and employment law, and schools are often challenged by how to manage these issues.  We note that the media report was the only available source of facts.

The facts

Mr M was a design teacher who had been with the same school for 13 years. He reportedly had an exemplary record and came from a long line of teachers in his family.

In October 2016, Mr M gave a young student a ‘gentle glance’ to the back of his head in order to ‘motivate’ him to continue working after he continued to talk during class.

The student was not injured and remained at school for the rest of the day, but told his father of the incident when he returned home. The father had a long history of grievances towards the school.

While the Police and the school initially felt the matter should be the subject of internal disciplinary procedures, the father refused to leave the Police station until the teacher was charged.  The school also took a 'zero-tolerance' approach to physical violence, meaning that the incident was classed as an assault.

In an interview the following day with the school’s human resources representatives, he was asked if he would repeat the incident. Mr M answered yes, interpreting the question as meaning ‘would you tap a student on the shoulder, or brush the back of their head?’ Mr M was suspended from his position in November.

Appearing before North Staffordshire Justice Centre in March, Mr M pleaded guilty to assault by beating. He accepted a six-month community order with 40 hours of unpaid work. He was subsequently dismissed by the school for having a criminal record.

The tap on the head - what is the law?

The teacher's contact with the student's head represents conduct which is prohibited by various laws, regulations or standards in Australia. For example, it could represent assault, corporal punishment or child abuse.

Assault

An assault by beating is a variation of a charge of common assault, which is used when a person is alleged to have committed a battery. In modern criminal law, the crime of assault now incorporates both the original common-law offence of assault as well as the offence of battery.

Battery is a summary offence contrary to section 39 of the Criminal Justice Act 1988 (UK), which is committed when a person intentionally and recklessly applies unlawful force to another.

Since Australia follows the UK common law, and many jurisdictions have a legislative equivalent to section 39 of the Criminal Justice Act, this case has particular relevance to Australian criminal law.

A charge of common assault does not require the victim to sustain any real or visible injury; in fact, the force required may be as slight as a mere touch. However, the defendant must have applied unlawful force which is more than everyday physical contact – such as bumping shoulders in a crowded location – which courts generally regard as inescapable ‘vicissitudes of life’.

Any justification/excuse which is open on the evidence must be disproved beyond reasonable doubt. One historical justification was the use of corporal punishment.

Corporal punishment

Under the Education Act 1996 (UK), corporal punishment given by a staff member to a student cannot be justified in any legal proceedings.

Historically, all Australian states and territories legislated for corporal punishment – or ‘reasonable chastisement’ or ‘lawful correction’ – by a parent or person acting in place of a parent (such as teachers) as a disciplinary measure. It enabled an applicable person charged with assaulting a child in their care to argue it was justified as they were using reasonable force to discipline or correct the child.

Most states and territories have explicitly prohibited the use of corporal punishment in schools, either by legislation, regulation or departmental policy. The Northern Territory most recently banned the use of corporal punishment when its new Education Act 2015 came into force on 2 January 2016.  The exception is Queensland where section 280 of the Criminal Code Act 1989 (Qld) allows teachers "to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances." Arguably, the teacher's tap on the head would be legal in Queensland. However, just because the right to use corporal punishment exists in that State, schools do not have to rely upon it.

Corporal punishment by providers or supervisors of an approved education and care service is also prohibited under the Education and Care Service National Law.

Child protection requirements

In the UK, each jurisdiction is responsible for its own policies and laws regarding education, health and social welfare, including child protection.

Although there are no specific mandatory regulations in the UK and England requiring professionals to report suspicions to the authorities, there is an expectation that schools will have procedures in place to report concerns about a child and to have a designated child protection teacher.

The situation is far more complex in Australia, where significant developments have taken place targeted at the protection of children from harm. Key changes include the abolition of corporal punishment across most jurisdictions and school systems, expanded background working with children checks, mandatory reporting requirements and criminal law duties to protect children from harm (in Victoria).

For example, in NSW, and now the ACT and Victoria, a school must investigate and report on allegations or convictions of ‘reportable conduct’, which includes any assault of a child.  Interestingly though, both the NSW and ACT reportable conduct schemes include exceptions for conduct that is ''reasonable'' for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards.  In NSW, the Ombudsman advises that ''examples of conduct that would not constitute reportable conduct include touching a child to attract their attention." Under this test, the UK's teacher's conduct may not be considered conduct must be reported to the Ombudsman, but it may still be illegal under other laws.  The reportable conduct scheme in Victoria does not include this exception.

The dilemma – child protection vs teacher quality

Incidents such as these present an unfortunate dilemma for schools. On the one hand, increasing recognition that the safety and wellbeing of children is paramount has required schools and similar institutions to develop stringent child protection policies and procedures, to ensure they are compliant with an increasingly complex myriad of laws related to child safety and wellbeing.  Like the UK school in question, many schools have adopted 'no tolerance' approaches to child safety in their schools. However, as this UK case shows, the practical reality of applying such an approach may not be straightforward and can lead to penalties which may seem unreasonable.

On the other hand, the stagnation of Australian education in comparison with other countries has increased pressure on governments, schools and teachers to improve. There has been substantial discussion on making teaching a more attractive career option in order to improve teacher quality.

Ultimately, there is an increasing expectation on teachers to both perform to a high standard of teaching and to interact with students in a professional manner. Under the Australian Professional Standards for Teachers, teachers are required to maintain minimum standards of professional knowledge, professional practice and professional engagement in order to maintain their registration/accreditation.

What does all this mean for schools?

Pamela Singh, Chairwoman of the Bench in Mr M’s case said that the most aggravating factor was the “breach of trust” of the student-teacher relationship.

As discussed previously by School Governance, teachers are in a unique position of trust, creating an expectation that the teaching profession will uphold high standards of accountability, integrity and professionalism. Failure to maintain these standards may attract disciplinary measures or legal action, regardless of the quality of the teacher.

Schools should have clear disciplinary policies and procedures in place for students who breach the school’s code of conduct, potentially including a statement on the school’s commitment to procedural fairness and the abolition of corporal punishment.

But they must also have guidelines for investigating and resolving teacher misconduct – including violations of disciplinary procedures – and which explain the process of reporting to external authorities.