A balanced view

A policy by itself is not enough to protect a school against claims of negligence. Its principles have to be woven through day-to-day practice, says Richard Bird.

I can still remember my incredulity when a primary colleague, back in the early 1990s, mentioned in a meeting that he had counted 19 policies that a school had to have. Since then, the number has multiplied like a plague of rabbits in Australia (or perhaps cane toads?).

Why is this? How did schools manage without so many policies for so many years? It is a bit like asking how we managed with just one significant education act from 1944 to 1980. The answer has something to do with common sense and professional discretion.

Policies can be essential but part of the reason for their proliferation is the same as the reason for the multiplication of education acts. Governments and pressure groups conclude that "something must be done" about the issue of the day, so there is a new law or policy or, as a last resort, the headteacher and chair of every school is sent on a course.

Cynical historians of the declining years of the Western Roman Empire draw attention to the fact that emperors of that period also used to issue decrees with increasingly worthy purposes, often repeated or refined; seemingly with diminishing effects.

Fundamentally it seems, it is the bureaucrat's belief that if there is a policy, you are safe. The logic is this: proof of negligence requires a duty of care and a danger that is foreseeable. Teachers and schools already have a duty of care established over a century and a half of litigation. So then, how do you prove that you have foreseen a danger and taken steps to prevent it?

For the bureaucrat, a policy shows that the danger is anticipated and ensures that everyone takes the appropriate steps to prevent it. For the bureaucrat, that is enough.

Not sufficient protection

But is it sufficient protection? In the words of Evelyn Waugh, "Up to a point, Lord Copper." A policy may make the adviser sleep easy but it does not guarantee a restful night for the manager.

The courts have increasingly taken the view that if a policy exists then the employer or occupier will be held to it. Its existence is taken to prove that a risk is foreseeable: not unnaturally.

The question then is whether the steps the policy identifies are sufficient and whether they have, in fact, been implemented. A policy or rule that is ignored is likely to create a worse situation than not having a rule at all.

Which brings us back to the multiplication of policies. "If everybody's somebody, then no one's anybody," wrote WS Gilbert. If every issue and risk has a policy, then two things follow: no policy can be a priority and no one can remember every policy. So policies are not the answer.

In the end there is no substitute for management. The key to making most policies work is ensuring that they never really need to be read because they are just "the way we do things around here". This depends upon effective induction for all staff, including supply staff and support staff.

It also implies that managers are on top of their jobs and that if a new member of staff, for example, allows children in a room unsupervised when they should not be, then the head of department (or other appropriate person) makes sure that they do not do it again.

Good defence

Similarly, if a matter is brought to the attention of senior management, they must act. If they do so as soon as it is brought to their notice and if the system for bringing things to their notice is effective, then they are likely to have a good defence against negligence - for themselves and for their employers.

And if the relevant middle manager failed to bring it to the notice of senior management? There should be an investigation with the possibility of disciplinary action for capability or conduct.

Teachers, after all, are not self-employed. They work within a hierarchy and that imposes responsibilities on those whose hierarchical position is being rewarded with additional payments. Implied in that is the duty to ensure that, through those staff for whom they are responsible, school policies are implemented.

Where a school has conscientiously and efficiently operated its processes, then the courts will be reluctant to find negligence but good intentions, professional codes or policies are not enough by themselves.