A webinar hosted by Mason Hayes & Curran (MHC) has heard that the expulsion of students from special schools should only be a “last resort”.

The event discussed key legal considerations for boards of management in schools, and took place in collaboration with the National Association of Boards of Management in Special Education (NABMSE).

MHC partner Catherine Kelly (pictured) referred to a case in which a school principal recommended the expulsion of a student with complex needs who had attacked another student.

The board’s chair, however, had concerns that the school had not put in place enough interventions to support the student with complex needs.

‘Drastic’ step

Kelly said that the board had to make the final decision, and had to be satisfied that everything had been done for the student concerned before going ahead with the “drastic” step of expulsion.

She said that expulsion should be a last resort, when the safety of staff and other students in the school could not be protected.

MHC associate Lorcan Maule pointed out that parents had a right to appeal expulsions through section 29 of the Education Act 1998. Under this process, an independent panel looks at the case again.

The webinar (20 September) also heard that parents could challenge expulsions through a judicial review, if they felt that fair procedures had not been followed.

Suspension guidelines

MHC partner Liam Riordan also urged schools to follow statutory guidelines on suspensions of students, adding that there should be contact with parents in such cases, as well as an investigation into the events that had triggered the suspension.

He said schools should always ask themselves whether it was necessary that a student be excluded from school immediately.

Riordan pointed out that, even if a principal approved a suspension for health-and-safety reasons, parents still had a right to appeal that decision and must be informed of this.

Kelly urged principals to be “very careful” on suspensions of children with autism or complex needs, adding that there had to be a “significant”, or imminent, health-and-safety risk to students or staff.

She also warned against open-ended suspensions, as parents could appeal under section 29, on the basis that this was a de facto expulsion.

Physical interventions

The webinar also discussed the potential for injuries to school staff, with MHC lawyer David Ruddy saying that there should be a policy on physical interventions that was agreed by staff and signed off by the board of management.

He added that there were currently no guidelines from the Department of Education on the issue.

“There will be crisis situations where there would be a need for a physical intervention, and possibly restraint, are required,” he said, urging schools to carry out rehearsals or drills of such scenarios.

‘Legal minefield’

MHC partner Liam Riordan described the disciplinary procedures surrounding alleged teacher misconduct as “a bit of a legal minefield” at the moment.

He said that a number of teachers had secured High Court injunctions linked to disciplinary proceedings, mainly on the basis of the court’s perception of the role of the principal and the content of the principal’s ‘stage four’ report.

Stage four is the most formal stage of the process, which starts when the principal prepares a report for the board of management on the facts of the case, which is then sent to the teacher.

Due to principals’ key role in advising the board, Riordan said, they could not come to any adverse findings against the teacher in the ‘stage four’ report.

He advised principals with concerns about a teacher’s conduct to take advice at an early stage.