Ensure it stacks up

In today's litigious society, the most well-intentioned actions can be subject to challenge if they aren't backed up with the proper documentation, says Richard Bird. It is vital to have a record of decisions and policy changes and to communicate them to staff and students.

Few ministers have exercised power in England more completely than Henry VIII's adviser Thomas Cromwell. He could send the message to say: "The Abbot of Glaston to be taken to Glaston, tried and hanged" in complete confidence that the trial would result in that outcome.

He allegedly had a stamp with Henry's signature engraved on it to save the king the bother of putting his name to troublesome orders.

And that was Cromwell's downfall. As an executive, rather than an administrator, he concentrated on getting things done rather than making sure that they had been done according to the book.

When Henry wanted him removed, it was only too easy to show that the king had not sanctioned his actions - even though he was doing what the king wanted.

Some school and college leaders are also by nature executives rather than administrators and it can be their downfall, too.

There are few greater temptations than to act first and think about the paperwork later. ASCL has and will continue to pressure the government to do what it can to reduce red tape. However the current reality is that without the right paperwork, the most well-intentioned and justified action may be undone by a panel, a tribunal or a court, and a situation may suddenly develop that threatens your whole career.

Know your limits

Where does it say what delegated powers you have? Does the school dress code specify what discretion you have to decide whether a particular item is unsuitable? What exactly is the procedure for removing a college's senior post holders? What does the discipline code say about the penalty for possession of drugs? Which members of staff have the power to detain and in what circumstances?

The barrister who turned up at an exclusion hearing and boldly announced: "My client had no idea that he was not allowed to smoke cannabis in school" might have been trying it on. But we can expect challenges to many of the new discipline powers schools now exercise. And if there is not specific, minuted, written authorisation, then we can also expect trouble.

If the subject of a rule does not know of its existence, s/he may have a legitimate or reasonable expectation in law that it does not exist and to be able to act accordingly.

Minuting brings us to governors. Henry VIII doubtless could not remember ever giving any authorisation to Cromwell to act on his behalf and the same can happen today.

Wise senior leaders ensure that minutes document the paper presented, an account of questions asked and the agreement of the main governing body or committee to the course of action or expenditure.

It brings us to another issue: how much can a senior leader spend without reference to governors?

It is sometimes alarming to find that a head has committed the school to substantial spending without any reference to governors or that a college principal has committed the corporation to a land deal without authorisation. This may not only be the end of a career; it may lead to awkward enquiries from the police.

Expulsion case

With the right piece of paper, a head or principal is secure. In the Marlborough College expulsion case, a parent tried to sue the school when his son was thrown out for persistent bad behaviour.

The college won the case because, like many independent schools, it had a clause permitting the leadership to ask a parent to remove their child if the child was, in the opinion of the head, unable to benefit from what the college offered.

This short-circuited the exclusion procedure and made all pleading about 'natural justice' pointless.

Most faith schools have a clause that covers 'actions incompatible with the values of the school'. Other schools may not have a clear idea where they stand until something goes wrong. It is often too late by then.

A useful exercise for leadership teams might be to take a few horror scenarios and check against policies and procedures to see what you can do within them. Wise before the event is always best.