Legal Protection for Governors
Do Governors need legal protection?
'Yes' and 'No' said
the lawyer. 'No' because Individual governors have the rock solid
protection of the corporate status of the governing body. Provided
governors have acted honestly and in good faith individual governors
face no personal liability, even if a governing body has exceeded its
powers or made serious mistakes.
But Governing Bodies? They do
need protection, because there are a whole series of situations where
legal action could be taken against a school, and in many cases the
Governing Body is the legal authority that has to defend the claim.
What,
I can hear you saying, about the insurance policies carried by local
authority, or in the case of Foundation Schools, Trusts and Academies,
by the school itself? The reality is that local authorities have a
variable record in providing quality legal advice. Schools with their
own insurance arrangements should be better protected, but policies
often have exclusion clauses and excess limits. Insurers will also
often prefer to pay out on a small claim, even if the school might wish
to challenge a claim.
Governors may find it difficult to
imagine facing the need to have an expensive conversation with a
lawyer, but the fact is that the need for proper legal support is not
uncommon. The reality of the situation at present is that Governing
Bodies feel powerless when faced with an intransigent local authority
or an employee's legal representative. Far too many governing bodies
throw in the towel even when they have a good case, and far too many
governors resign from the governing body after conceding in a situation
where they felt they were in the right.
At present the NGA
cannot afford to support Governing Bodies with legal advice, but we
believe that the need is so great that we are actively investigating
means by which we might offer some form of support as a benefit of
membership.
In the meantime we support Governing Bodies in
difficulties as best we can, recommending recourse to legal support if
the Governing Body feel that such action is justified. Such legal
support can be expensive. In recent cases governors spent over £10,000
in each case defending their actions - without stepping anywhere near a
court.
CASES
In one case a parent was making very
public complaints against teachers. The school had written evidence to
demonstrate that the allegations were false, and the governors wished
to issue a press release defending their staff and denying the
allegations. The local authority instructed the Headteacher and
governing body not to contact the press. Without independent legal
advice the Governors had little choice but to concede. Subsequent legal
advice indicated that the local authority was acting beyond its powers.
In
another case a Governing Body appointed a new Headteacher only too
discover that, within months, the new head was behaving in an arrogant
and dismissive way towards governors and failing to follow proper
procedures in terms of finance and staffing. The governors wished to
initiate disciplinary procedures but were consistently advised against
this course of action by the local authority. Subsequently governors
discovered that their failure to take early disciplinary action against
the Head counted against them in an employment tribunal hearing.
A
pupil claimed to have been hurt whilst moving through the school. His
parents made a claim against the school. The family had been in dispute
with the school in the past and teachers believed that the claim was
invented. The local authority's insurers recommended a payout because
the sum claimed was less than £2000. Governors believe that the payout
would damage discipline and generate more claims; a stiff letter from a
solicitor could, they believe, have 'seen off' the claim, but the local
authority would not offer legal support to the school.
In the following types of case the NGA feels that the Governing Body would need access to independent legal advice.
- Disputes
with the local authority - such as negligent advice from SIPs or
advisors, school closure claims, issues around building work and
planning consent, special needs advice.
- Employment law cases - grievance, performance management disputes, capability, wrongful or constructive dismissal.
- Human rights cases - uniform, religious observance, admissions.
- Special needs cases - particularly around provision, admissions, and exclusions.
- Admissions and exclusions - particularly where the school is the admissions authority.
Here
are some links to recent press stories. Would you welcome the advice of
a lawyer if this was your school and your governing body?
School relocation proposal.
Find it >here<
Governors told to apologise.
Find it >here<
Governors sack the headteacher.
Find it >here<
Governors fight council over relocation plans.
Find it >here<
Phil Revell 7th July 2008
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