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					DRAFT for public consultation A contribution to the Learning Outside the Classroom Manifesto Guidance and information from DfES for school employers and employees

How to investigate fairly after any accidental injury to a pupil
Contents I. Introduction II. How to investigate fairly III. Insurer / employer practice on allegations of negligence in accidental injury (i) Civil law - public liability insurance (ii) Criminal law - public or professional liability insurance IV. Reassuring staff V. Investigating VI. Context: other DfES guidance Annexes 1-3. This update to DfES guidance has two purposes: first, to facilitate the participation of school staff in helping pupil to learn outside the classroom, by reassuring staff about their rights as well as duties in the rare event of an accidental injury to a pupil; and second, to remind school employers (whether the employer is a Local Authority, Governing Body or proprietor) about good practice towards staff in such a case. It repeats some key points from other guidance by DfES that are relevant to all schools on general pupil safety, as context for points specific to a case of accidental injury. See at end of this note, for references to other guidance. Drafting query [DQ]: insert here a short check-list of key points? [I] Introduction [1] 8 million* pupils attend schools in England; most go on school visits every year. Millions of school activities outside the classroom take place safely every year because most pupils behave properly, their parents cooperate, and most of all, school staff are very good at keeping their pupils safe. As a result, the chances of a pupil suffering a serious accidental injury are very low indeed. Plenty of guidance exists already for school staff about their responsibilities on a school visit, and the support available. [2] We all – school staff, employers and Government – want our pupils to experience the excitement of learning outside the classroom. At the same time, we recognise that learning outside the classroom requires staff to manage risks from hazards that are not present in the classroom, whether from waterways, steep slopes or simply busy traffic. [3] While this note briefly cross-refers to guidance about responsibilities and support, its focus is on reassurance. Apart from that reassurance, most readers of this will never need to use it, as serious accidents are so rare. We hope this will encourage more staff to get involved in school visits, since DfES believes it is important for all pupils to learn first-hand about the world outside, and therefore wants schools to continue, and further develop, learning outside the classroom that is both stimulating and safe.

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[4] As the Education Select Committee said in 2005, some reports in the media are out of all proportion to reality. The point is, this has two sides: [a] while school staff have to take reasonable care…  staff take on a responsibility when they take charge of pupils;  outside the classroom, pupils can meet more hazards;  but staff don’t have to go to unreasonable lengths to prevent any conceivable accident;  and thousands of staff expertly keep millions of pupils safe outside the classroom every term. It’s what normally happens. [b] … school staff also get support:  laws protect staff, if – rarely - injury happens despite all their care;  generally speaking, only a grossly negligent employee could face prosecution and conviction;  staff don’t have to do it all alone. Others must and do play a part: most pupils behave well, parents co-operate, employers must give guidance. The employer also retains responsibilities for pupil safety – staff are not solely responsible. In this guidance: - where we cross-refer to other guidance, a full reference is in annex 1. - we use ―must / must not‖ for a duty or prohibition in law; ―can‖ for a power; and ―we recommend/ you should‖ for advice on good practice. [DN: we avoid e.g. ”need” (unclear whether = must or should), or “we envisage” etc., where we mean “should”.] [II] How to investigate fairly [1a] Shared responsibilities: Responsibilities for pupil safety outside the classroom rest with both the employer and with staff. As stated in DfES’s ―Health and safety: responsibilities and powers‖, the employer must provide guidance and training to staff, and ensure the competence of staff to whom the employer delegates safety tasks. A school’s head teacher, and its Education Visits Co-ordinator (whose role is mainly to advise on safety), should play a key role in advising school staff. [1b] Presumption of innocence and of no liability: In the rare cases which go to court, it is of course the plaintiff or prosecution who bear the burden of proving their case to the satisfaction of the court. Unless they can do so, the presumption is that the defendant is not liable, or is innocent. In a civil case, the defendant will in practice be the employer only (see section 4 below). In criminal cases, the defendant might be employer and / or employee (see section 5 below). See Annex 2 on examples of civil and criminal law. [1c] Investigation by employers: The HSE recommends that employers investigate serious accidents in order to learn lessons and prevent a repeat1; and by law, employers must report2 the more serious kinds of accidents to pupils, and must record all ―reportable‖ accidents (see ―Investigating‖, below). Employers, in investigating any accidental injury to a pupil, must3 act fairly. The employer, employee, pupils and
1 2

See HSE guidance, listed in Annex 1. ―Reporting of injuries…‖ Regulations (which also require recording of reportable injuries), see Annex 1. 3 Or the employee could claim ―constructive dismissal‖: where an employee resigns due to their employer's behaviour. The employee must prove that the behaviour was unfair — that the employer's actions amounted to a fundamental breach of contract or the law.

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parents all have rights and duties (see 3b below re parents). It is important for employers to offer clear information to employees about these rights and duties, especially if there is any conflict to resolve between employer and employee4. At the same time, in all the following points, readers should bear in mind that serious incidents are very rare. [2] As an aid to school employers and school staff, DfES has agreed to compile a full overview of practice by public liability insurers and by school employers on this area of civil and of criminal law. It is important to distinguish between the two types of law – see separate sections on each, below. DfES hopes that this overview could form the basis for any negotiation on staff conditions in this area, between representatives of school staff and a school employer or employers. This is not legal advice; anyone involved in an incident should rely on their legal adviser. [3a] Employers should reassure staff about what back-up is available if a pupil does suffer an accidental injury. This guidance also reminds employers how they can inform staff about options for staff, where the employer believes staff did not act properly. [3b] Parents: the employer should keep parents of an injured pupil informed of plans for and progress of an investigation (see 7a below). If a court finds that a pupil injury was due to neglect by the school employer or staff, the pupil (and perhaps parents) can claim compensation. If a court finds that a pupil injury was partly or entirely due to contributory negligence by the pupil e.g. through disobeying reasonable instructions of school staff, the court might decide that less or no compensation is due. Staff should check more on whether instructions are being obeyed by younger or less mature pupils. Parents should tell their child that rules set at home also apply at school; talk to their child so they know the school has a legal right to discipline them; and help their child understand the serious consequences to behaving badly at school – including on a visit (see ―Help your child to behave better‖, by DfES and Parentline plus). [III] Insurer / employer practice on allegations of negligence in accidental injury Some main points from paragraphs [4-6] below are summarised in the table at Annex 3. (i): Civil law - public liability insurance (claim against employer) [4a] DfES strongly recommends that school employers should take out public liability insurance5 against the rare but serious risk of a major claim under civil law6 from a pupil or parent against a school employer. Public policy aims to enable a victim of workplace
4

See DTI and ACAS guidance to employers and employees on discipline, grievance, and resolving conflicts at work – listed in Annex. 5 DfES Insurance guide for schools (2003), page 29, at: www.dfes.gov.uk/valueformoney/index.cfm?action=GoodPractice.Default&ContentID=22 . Public liability insurance, the Association of British Insurers has said, covers the employer’s ―legal liability to pay damages to members of the public for death [or] bodily injury … which occurs as a result of your business activities. It also covers legal fees, costs and expenses such as representation at any coroner’s inquest, fatal accident enquiry or other court hearing because of an accident. When deciding on how much cover to buy, an employer should carefully consider the maximum claim that could be made against them. Awards for injury can exceed £1 million. Certain businesses, where there is a … possibility of multiple personal injuries, could face claims for damages far exceeding this figure. The limit of indemnity will apply to claims arising from a single incident.‖ See advice at www.abi.org.uk . 6 See Annex 2 on different types of law.

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negligence to sue the employer over actions or omissions by his staff at work – hence employers should have public liability insurance, while employees generally do not (that is why, in practice, school staff don’t get sued). The insurance should cover costs of legal advice, representation, and compensation that the employer is required to pay. [4b] A civil claim against an employer can be over the employer’s [i] ―personal‖ liability for actions or omissions of the employer themselves, or [ii] ―vicarious‖ liability for actions or omissions of their staff in the course of employment, whether or not in accordance with the employer’s policy – instructions and guidance. [4c] ―In the course of employment‖ usually covers all action or omission by employees in connection with their employment, but in rare cases a court can decide that an employee’s actions were so far from the employer’s instructions or guidance that they are outside the course of employment – so the employer has no vicarious liability. A lawyer paid for by insurance cover will be instructed by either the insurer, or the insured employer, on their view of whether staff acted in course of employment (and if so, whether in accord with employer policy). Some public liability (or ―indemnity‖) insurers retain the right to defend or settle any claim - in those cases, the lawyer will present the insurer’s view; otherwise, the employer’s view7. In those circumstances: - if whoever instructs the lawyer believes that the employee acted outside the course of employment, and therefore that the employer has no vicarious liability, they require the lawyer they instruct to argue accordingly; - if in the above case, the employee wants to say in court that the employee did act in course of employment, then the employee is in dispute with their employer. It might then be in the employee’s interest to seek advice from a lawyer not instructed by the insurer or by the insured employer. ACAS guidance on resolving disputes8 does not mention any requirement for, and does not recommend, an employer paying for putting the employee’s side in a dispute. [4d] If an employer and an employee dispute whether the employee’s actions were within the employer’s policy or in course of employment, then they should seek to resolve their difference informally, and the employee has a right to make use of statutory grievance procedures which the employer must follow (see ACAS guidance above). [4e] DfES recommends that employers make available to school staff, brief and straightforward information on how their insurance covers a possible civil claim against the employer relating to action by staff. Whether insurance covers a civil claim against the employer over a particular accidental injury will depend on the exact terms of the policy including e.g. excess provisions, and whether the employer has complied with all the terms of the insurance. Employers should benefit by producing such information,
7

For example the ―Venture Plus‖ policy at www.axainsurance.co.uk which includes Public Liability and safety legislation legal defence costs, says under General Conditions (page 29) ―We shall at our discretion be entitled to take over and conduct in your name the defence or settlement of any claim‖. Similarly, public authorities select solicitors from a panel of firms to defend ―public liability‖ negligence claims and state that ―It is for the panel firms, in conjunction with the Authority, to work out the chances of a claim succeeding at trial, and the damages likely to be awarded, and then to advise on whether/ how the claim should be defended or settled‖ (example quoted from http://www.nhsla.com/Clinicians/ ). 8 Code of Practice 1: ―disciplinary and grievance procedures‖ 2003, under ―Resolving Disputes‖ at: www.acas.org.uk/index.aspx?articleid=1007 .

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since it should encourage staff to follow employer policies and advice, and to feel reassured about leading school visits. (ii): Criminal law: public or professional liability insurance (prosecution of employer or employee) [5] DfES also strongly recommends that school employers should take out public or ―professional‖ liability insurance9 against the rare but serious risk of a prosecution under criminal law10 by the Crown Prosecution Service or the Health and Safety Executive against a school employer or employee. Unlike insurance for civil claims, this should cover only the costs of legal advice and representation. In a criminal case, vicarious liability can arise, as with civil cases (above), and the issues for employer and employee are similar to those at [4b] to [4e] above. [6a] In criminal cases, an employee is entitled to legal aid11 for the cost of a solicitor at the police station if interviewed under caution (which is not means-tested), and in some cases may be entitled to legal aid thereafter (which is means-tested). A criminal law solicitor with a certificate for legal aid could advise further on this. Union members could ask their union for legal advice specific to their position. [6b] When a pupil was injured and prosecutors were unable to prove that staff leading the activity had not adequately fulfilled their responsibilities, courts have found the employer and not the staff answerable. Since 1997, tens of millions of pupils from England have safely completed many challenging and worthwhile learning activities outside the classroom. Out of those tens of millions, DfES is aware of only just over two dozen fatal accidents to pupils; of those, only a minority have led to court convictions, of which only 4 were against staff alone (and 1 against staff and employer); in remaining cases, the court confirmed that staff were innocent and penalised only the employer. (Figures at summer 2006). We have learned and publicised lessons from these: 4 cases were overseas, hence our 2002 guidance on Local Authority oversight and on adventure standards; 7 involved water, hence our water margins guidance in 2003. In this way we have improved protection for all pupils and staff from now on. [IV] Reassuring staff [7] The following are straightforward ways in which an employer can, while investigating an injury, help to reassure employees that the investigation is being handled fairly; and that the employer is fulfilling his duties towards his employee. See also DfES guidance 2002, para 75-76, which recommends identifying a key official for contact with bereaved parents. [a] school managers should communicate to the pupil’s family at an early stage: - an expression of their regret that a pupil has suffered an injury, after checking wording with the employer. An employer might wish to take legal advice on wording, in order to be able to counter strongly any allegation that such expressions of sympathy could be used against it later (e.g. in court). On civil liability, the Compensation Act 200612 underlined that an apology, an offer of treatment or other redress, shall not of itself
9

DfES Insurance guide for schools (2003), page 30, at: www.dfes.gov.uk/valueformoney/index.cfm?action=GoodPractice.Default&ContentID=22 10 See Appendix on different types of law. 11 See ―practical guide to Criminal Defence Services‖ at: www.legalservices.gov.uk/public/cds/index.asp 12 Section 2, in force from 25 July 2006.

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amount to an admission of negligence or breach of statutory duty; - what they and others are doing to investigate; - their initial understanding of the circumstances. This might not be complete and will not be confirmed until the end of any investigations, but the employer can probably agree some facts, e.g. that an incident involving persons x and y took place on x date. The employer can take account of advice from their insurer or legal adviser on wording. It should be possible to agree certain matters without prejudicing the employer’s defence in the event of a claim or prosecution. [DQ: should employer also inform employee of all information to the pupil’s family?] [b] the employer should communicate to any employee involved in supervising the pupil at the time of the injury: - that investigations are starting from a presumption that the employee is innocent of any wrong-doing unless proved guilty; - that the employer will follow good practice in conducting any investigation; - that the employer will pass on promptly to the employee information that he receives from others (such as the police, CPS or HSE) conducting investigations [DQ: unless he believes it could prejudice the proper conduct or outcome of an investigation? Any other rare exceptions?]. [c] in the most serious cases, the employer might help to arrange counselling for those most closely involved13. [d] the employer should also follow relevant parts of DfES guidance on dealing with other kinds of allegations, while bearing in mind key differences, e.g.: [d1] when it is good practice not to suspend an accused employee. As stated in existing guidance about other kinds of allegations, an over-hasty or ill-judged decision immediately to suspend a member of staff when an allegation of neglect leading to accidental injury is made, could have a detrimental effect upon the person’s career. There may be other options instead of suspension. Suspension could be a negative experience for not only the individual involved, but also their family, other children at the school, their parents and other staff. All concerned will wish to be reassured that the responsible agencies will act in a careful, measured way when allegations of neglect are brought to their attention. [DN: add any other relevant examples]. [V] Investigating [8] HSE’s ―Investigating accidents and incidents – a workbook for employers, unions, safety representatives and safety professionals‖ (2004) sets out straightforward ways in which an employer can investigate an injury while starting from a presumption that school staff are innocent unless proved guilty. [DQ: give a few examples?] It includes recommendations on who else an employer should involve in an investigation.
13

See DfES guidance for schools on coping with the death of a pupil, at: www.teachernet.gov.uk/healthandsafety .

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An employer or the person in control of work premises must by law report to the HSE14, and record, serious work-related accidents to a pupil (if the pupil is taken to hospital, or dies), or dangerous occurrences e.g. an electrical short circuit causing a fire. [VI] Context: other DfES guidance As mentioned above, this note is one of several items of DfES and other guidance which aim to reassure school staff and facilitate their participation in school activities outside the classroom. Key references in other guidance are: [1] Ofsted monitoring of Local Authorities: Ofsted will help to ensure that Local Authorities consistently monitor that their schools safely manage pupil activities outside the classroom – where the role of the LA outdoor education adviser is key. Each Children’s Services Authority in England must make arrangements to promote cooperation with relevant partners on (among other things) ―protection from harm and neglect‖15 for children. Ofsted’s Framework for the inspection of children’s services 16 sets out how, over 3 years, Ofsted work on Joint Area Reviews will check (among other things) how well each Local Authority protects pupils from harm and neglect in its education services. School references: - outcome 2, staying safe; aim 2, safe from accidental injury and death: reviews can describe ―children and young people’s perceptions of the risk of accident at school‖ (among other things). [2] role of support staff DFES published on Teachernet in 200517, Guidance on the roles of school staff beyond the classroom, which reflects both the principles of school workforce reform and relevant health and safety legislation . See also TDA’s video case-studies on workforce remodelling, on support staff taking on work on school visits: www.tda.gov.uk/support/hlta/workingashlta.aspx ; and www.tda.gov.uk/Home/remodelling/nationalagreement/resources/casestudies.aspx case study on Mereside primary school. [3] “generic” activity risk assessments: more emphasis on ―generic‖ activity risk assessments is recommended by DfES for school-led activities in ―Standards for LAs in overseeing educational visits‖ (2002, para 17-36). HSE support this; DfES will inform the education sector about future work on this, planned by HSE. By ―generic‖, we mean assessments for an activity regardless of venue. School staff can benefit from:  Activity Centres inspected by AALA for paid-for caving, climbing, trekking and water adventure for under-18s: they have done such assessments in order to pass their AALA safety inspection – schools can rely on this. (School staff should still discuss the assessment with the centre: while the centre knows the activity, only school staff know their pupils.)  L.As who usually prepare generic activity assessments for use by their schools for school-led activities: DfES recommends to L.As that they share their assessments with fellow L.As, to reduce duplication and spread good practice.

14

See HSE information on what the law requires from employers under ―Reporting of Injuries, Diseases and Dangerous Occurrences Regulations‖ (RIDDOR), at: http://www.riddor.gov.uk/info.html and more detail at: http://www.hse.gov.uk/pubns/hse31.pdf . You can order a priced guide at www.hsebooks.com . 15 Children Act 2004, section 10. 16 Published 2005, see: www.ofsted.gov.uk/publications/index.cfm?fuseaction=pubs.summary&id=3765 . 17 See: www.teachernet.gov.uk/wholeschool/supportstaff/ - middle column, 5th heading from the top.

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While the in-school EVC is best-placed to do venue- or group-specific assessments, school EVCs and LA outdoor education advisers can agree other arrangements. [4] See Learning Outside the Classroom Manifesto main text, for strategic context. Annexes 1. Where to find specific guidance on rights and responsibilities 2. Examples of criminal, civil, common and statute law; types of personal injury 3. Legal representation: when is it in employee’s interest for employer to pay?

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Annex 1 Where to find specific guidance on rights and responsibilities, mentioned in main text. [1.] HSE guidance on accident investigation for non-specialists: ―Investigating accidents and incidents - a workbook for employers, unions, safety representatives and safety professionals‖, 2004 (Ref. HSG245), HSE Books, ISBN 0 7176 2827 2, £9.50. [2.] Joint guidance by the Local Government Association, HSE, Crown Prosecution Service, Association of Chief Police Officers, and British Transport Police: ―Workrelated deaths – A protocol for liaison (revised Feb 2003, 16 pages): HSE Ref Misc491. Free online at www.hse.gov.uk . Deals particularly with serious incidents where, after a death, evidence indicates the possibility of a serious criminal offence (for which the CPS would prosecute) other than a health and safety offence (for which HSE would prosecute, as the enforcing authority in education for any school employer). [3.] DTI guidance to employees on resolving workplace disputes, including an employee's legal rights and duties in disciplinary procedures, is at: http://www.dti.gov.uk/employment/Resolving_disputes/index.html [4.] HSE guidance for employees on resolving workplace disputes, specifically about workplace safety (HSE): www.hse.gov.uk/workers/whistleblowing.htm [5.] DTI guidance for employers on the employer's legal rights and duties in disciplinary procedures is also at the above web-page. [6.] ACAS guidance on discipline and grievance at work, including a code of practice for both employees and employers: http://www.acas.org.uk/index.aspx?articleid=360&detailid=548 [7.] More about the above guidance is on Directgov advice to employees at: www.direct.gov.uk/Employment/Employees/ResolvingWorkplaceDisputes/ResolvingWo rkplaceDisputesArticles/fs/en?CONTENT_ID=10028113&chk=c6EjZy [8.] HO guidance on risk and insurance for voluntary and community sector, at: […] [9.] DCA guidance on regulation of claims management firms, at: […] [10.] DfES: Insurance – a guide for schools (2003) – includes a useful Glossary. [11.] DfES safety guidance Health and Safety of Pupils on Educational Visits (HASPEV, 1998) + Supplements (2002). Supplement 1, Standards for Local (Education) Authorities in overseeing educational visits, includes at para 70-76 ―Investigation of serious incidents‖. Also: AALA website – collective interpretations. [13.] HSE guidance on ―Reporting of injuries…‖ regulations: http://www.hse.gov.uk/pubns/hse31.pdf - also explains which injuries an employer or a controller of work premises must record. [14.] Parents: ―Help your child to behave better‖, by DfES and Parentline plus, 2005; from DfES@prolog.uk.com or 0845 60 222 60 (quote ref PKHFM4).

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Annex 2 Reference in main text: Section II, para 1[b].

Table 1: Examples of criminal and civil, common and statute law Civil If a court finds that a person or organisation did wrong under Civil law, it can order them to pay damages to whoever they wronged. e.g. Unfair dismissal, which entitles the dismissed person to seek damages through an Employment Tribunal. e.g. the ―tort‖ (―wrong‖) of negligence – causing someone harm, e.g. a personal injury, by failing in the duty to take reasonable care towards them. Criminal If a court convicts a person or organisation18 of an offence under Criminal law, it can fine or imprison them.

Statute An Act of Parliament or Regulation says that you must or must not do something. Common Cases before the Courts have established a precedent that you must or must not do something.

e.g. Offences of failing to ensure health and safety in the workplace (Health and Safety at Work Act and regulations under it). e.g. Manslaughter through ―gross neglect‖ – a more serious failure of your duty of care.

Table 2: Examples of different kinds of Personal Injury Employer’s liability Disease Employee gets disease because of employer’s activity. Non-employee gets disease because of employer’s activity. Accident Employee suffers accidental injury because of employer’s activity. Non-employee suffers accidental injury because of employer’s activity.

Public liability

18

Directors, shadow directors or other officers may also be liable in some circumstances.

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Annex 3 Reference in main text: Section III, paragraphs [4-6].

Types of legal case against a school employer (ER) and/ or employee (EE) over a pupil accidental injury. Type of case* [1] By (A) Civil Parent/ pupil (B) Criminal CPS &/ or HSE (mostly common law, some statute) ER (convictions re 5 fatalities since 1997) & / or EE (convictions re 5 fatalities since 1997) ER: - ―personal‖; &/ or - vicarious, in some cases (not manslaughter); - corporate (e.g. HSWA S.37, offences by bodies corporate); (EE: doesn’t arise in practice) EE: personal.

[2] Against

ER (in practice, not EE)

[3] What liability?

ER: ―personal‖ &/ or vicarious (negligence; breach of statutory duty)

* excluding disciplinary – internal (ER) or professional (GTC).

DfES [November] 2006

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