Charlotte Melhuish discusses how schools should respond to claims of discrimination and the key considerations for governors

Perhaps reflective of broader global trends, schools have seen an increase in former pupils reporting their experiences of discrimination at school. Some of these experiences relate to incidents that are alleged to have taken place many years ago, whereas others are more recent. In this article, we explore the issue through a fictional case study.

Case study

The chair of governors of the Red School receives an email from a former pupil (who left last academic year) stating that he was subject to racism while at the school and that “he does not wish any other pupil to be subject to such discriminatory behaviour”. The former pupil names the alleged perpetrators, some of whom are still pupils at the school. He alleges that teachers did not take appropriate action at the time to deal with the behaviour. He has also shared his concerns on social media, to which other alumni have responded, suggesting there is a culture of racism at the school.

What steps should the school take in response?

The most important, overarching principle is that all allegations of racism should be taken seriously – racism has no place in society or schools. Staff and governors are in a front line position to encourage and maintain an equal and inclusive culture in school, and respond appropriately and robustly if incidents arise.

• Gather facts – Given the potential for police involvement (see below), the chair should ask a member of the senior leadership team to gather sufficient information to establish the broad facts. For example, what has the former pupil alleged? Was the school aware of the incidents at the time and, if so, are there contemporaneous notes of the action taken in response? Have the alleged perpetrators been identified by the victim(s) online, and which of these are current pupils? These factors will help to determine the next steps.

• Take advice and liaise with other agencies as needed – The chair or head should consider whether to take legal advice at the outset, given the seriousness of what is alleged and the potential implications (including potential reputational damage to the school if the response is not properly and sensitively handled). Discussions should also include whether to liaise with external agencies, such as the police (if a crime may have been committed) or social services (if there are safeguarding concerns about a child or young person).

As for all serious cases, the school may wish to refer to the non-statutory guidance from the National Police Chiefs’ Council ‘When to call the Police, Guidance for Schools and Colleges’, which provides guidance to schools when considering contacting the police. The guidance explains when an incident is considered to be a hate incident (which includes when the victim or anyone else believes the incident was motivated by hostility or prejudice based on race), and also when it’s considered to be a hate crime.

Whether the chair or head reports the matter to the police is a matter of professional judgement taking into account all the factors in the guidance, the outcome of the school’s initial fact-finding exercise and all relevant circumstances.

Where the police are involved, the next steps will, to an extent, be led by them. This does not completely prohibit a school-based investigation but the school should liaise closely with the police regarding timings to avoid prejudicing any police investigation. If the police don’t need to be involved (or where the police confirm the school may proceed with its own internal investigation), the chair or head should ensure the school-based investigation is conducted in accordance with school policies.

• Alleged perpetrators who are current pupils – The school has a duty of care to its current pupils, which includes the alleged perpetrators. The head should therefore ensure that steps are taken to monitor these pupils and, where necessary, that appropriate arrangements are put in place (for example, if there’s a risk that they may be bullied or targeted themselves, particularly if the allegations have been shared online). Depending upon a pupil’s age, this may require the parents’ involvement. If the outcome of the school’s investigation confirms that current pupils were acting in breach of school policy and displayed inappropriate discriminatory behaviour, the head may impose sanctions in accordance with the school’s behaviour policy. The chair should be informed of the outcome of the school’s investigation.

• Preparing a response – The chair’s response to the former pupil should be approached with care bearing in mind the sensitivity of the allegation and that any response may be shared by the former pupil in a public forum, for example, via social media. PR and/or legal advice should be sought as appropriate. Any disciplinary action taken against current pupils should not be disclosed to the former pupil.

• Social media – If the allegations are being shared publicly on social media, the chair or head should ensure that staff have been advised not to respond to any public or press interest (including responding to comments made by alumni), but direct all communications to a designated central point of contact in school who has been provided with clear guidance on an appropriate response (following PR advice, as required). PR and/or legal advice should be sought if the school is considering taking steps to remove the social media post and/or restricting any further comments from others.

• Raising awareness/teaching – The chair and head will no doubt be aware that there is always more that can be done to promote and improve a culture of equality. This should include ensuring senior leadership takes a proactive approach in considering what more can be done ‘on the ground’ and what lessons can be learned as a result of this allegation. For instance, it may be appropriate to involve pupils by asking them what they feel should change (such as via a pupil committee); ask senior leadership to speak with staff about their experiences; review the curriculum and PSHE lessons; and set up an action group of staff who can drive forward any proposed changes.

What are the key considerations for governors?

While senior leaders will handle the operational on-the-ground response, governors will have a key strategic role in responding to and managing such incidents, not least as they have ultimate responsibility for ensuring appropriate action is taken where it is alleged that there is (or was historically) racism/discrimination in the school. For instance:

• Governors should hold the senior leaders to account in ensuring serious allegations are handled correctly, and ensure they are confident staff have the appropriate training and resources to do so.

• Bullying records should be reviewed for patterns of racist incidents.

• If a culture of racism/discrimination in the school has been found to exist, governors may want to consider whether to commission an independent review to identify issues and advise on ways to improve the culture of the school going forward.

• If the school is a charity, governors (as trustees) will need to consider whether to make a serious incident report to the Charity Commission. The Commission has guidance online which summarises the relevant factors, such as whether the incident results in or risks significant harm to the charity’s beneficiaries (that is, pupils/former pupils), and/or harm to the charity’s work or reputation.

Ultimately, it is the responsibility of the trustees to decide whether an incident should be reported based on the incident meeting the seriousness threshold. If governors decide not to make a report, the reason should be recorded appropriately (for example, in meeting minutes). If the Commission later becomes involved, trustees will need to be able to explain why they decided not to report at the time.

• Should more be done to hold leaders to account for diversity, equality and inclusion more generally? Governors may wish to consider having a designated governor who takes the lead in this area, and reports back to the wider governing body periodically.

What are the wider implications for the school?

Failure to create and maintain a culture of equality can have additional wider implications for the school, including:

• Legal and regulatory requirements – There are various legal and regulatory requirements for independent schools relating to unlawful discrimination and promoting mutual respect and tolerance (for example, Parts 1 and 2 of the Independent School Standards Regulations 2014 and obligations under the Equality Act 2010). On inspection, inspectors may look at whether incidents of bullying or prejudiced and discriminatory behaviour are common and whether these are indicative of ineffective safeguarding practices.

It is for the governors and head to satisfy themselves that the school is meeting these standards, bearing in mind that inspectors may challenge both senior leadership and governors to reflect upon whether they are doing enough to promote equality and the effectiveness with which the school deals with discrimination, including racism, in all its forms, particularly in light of Independent Schools Inspectorate’s new inspection framework with its central focus on pupil wellbeing. Schools which are found to be failing to encourage respect for others and/or to deal effectively with racism risk not meeting the independent school standards and, therefore, are at risk of sanctions issued by the Department for Education.

Heads and governors should therefore ensure the school is regularly reviewing its procedures and relevant policies such as those regarding equality, anti-bullying, behaviour and the staff code of conduct; that these are being effectively implemented in practice; and that these are contributing to the creation of an inclusive ethos and culture across the school.

• Legal claims – Parents, pupils or alumni may seek to bring legal claims against a school in relation to discriminatory behaviour, including claims for discrimination, negligence and/or breach of contract. The merits of such cases are of course dependent upon the facts, but even cases without merit can be time-consuming and costly for the school to respond to.

It’s therefore important for heads and governors to ensure the school takes active measures to promote and maintain a culture of equality, and effectively and promptly deal with any incidents of alleged discrimination if they arise. This commitment should not simply be set out in a policy, but actively implemented in practice.

Charlotte Melhuish is a partner in the education team at law firm Stone King.