Legal risks you need to be aware of – part 2

by The Educator02 Jun 2016

The Educator asked two experts – David Ford of Emil Ford Lawyers and Alex Kohn of Makinson d’Apice Lawyers – to identify some of the most important emerging legal risks facing school leaders.
 
 
1. Parental complaints
 
Principals are seeing more discrimination claims arise out of unrealistic parental expectations, but they can still hit a school’s bottom line to the tune of $10,000 to $20,000 per claim.
 
In the ‘age of entitlement’ we live in, Kohn said parents are increasingly blaming a school directly if anything goes amiss with their child’s education, whether that’s poorer than expected results in the classroom or the inability to make a school’s top sporting team. This can sometimes be exacerbated by ‘flowery language’ on a school’s website, he said, which can open a gulf between what is being promised, and what ends up being delivered. “What parents don’t often realise is that school work gets harder in high school, there is more competition for places in sporting teams, or that sometimes it’s just normal teenage growing issues, where a child may not be as focused on school work as they were,” he said.
 
Kohn recommends good communication at the coalface as early as possible to ensure expectations remain realistic. This includes proper teacher feedback on parent teacher nights, which he said should be more direct, rather than vague, to ensure parents get the message. This can then be followed up the chain if necessary to avoid legal risks.
 

2. Workplace bullying
 
Previous amendments to the Fair Work Act have allowed employees who feel they are being bullied to bring an application to the Fair Work Commission, which is able to determine if bullying has occurred and give orders to try to deal with it. “I’m finding there are more of those cases as people start to become more conscious that there might be bullying in the workplace and that they can do something about it,” Ford said.
 
These incidents can see employees bring complaints within schools using their own internal policies and grievance procedures, as well as externally, and can involve claims against peers, supervisors, or even supervisors accusing someone under them of bullying. While there are no actual monetary damages at stake, Ford said schools risk departments being either dysfunctional or less functional than they should be, and that schools can end up losing good teachers who go somewhere else, apart from any of the legal consequences.
 
Schools should respond with clear policies, staff education, and a willingness to talk about them to “nip them in the bud”. Ford said the appropriate procedures should always be followed, the necessary investigations carried out, from which schools can learn.
 
 
3. Enrollment contracts
 
Private schools are not doing enough to ascertain whether potential students have any existing special needs before accepting their enrollment, Kohn said. Ranging from particularly gifted students, to those with conditions and disabilities like ADHD, autism or even physical disabilities, schools are often failing to effectively source and check this information during the pre-enrollment period, leading to challenges accommodating these students, or indeed letting them go, which can lead to discrimination claims.
 
“What often happens is a school thinks there’s nothing wrong with a child, the enrollment is accepted, and then parents fully disclose for the first time or elaborate on something they hadn’t properly disclosed earlier,” Kohn explains. “Sometimes, schools are unable to accommodate that – they might not have a special needs unit, or enough special education teachers to deal with it, or the playground hasn’t been set up for a child with massive physical disabilities – and after a few months the child is lagging well behind,” Kohn said.
 
Schools should insist on full and frank disclosure in their enrollment application material, Kohn said, in a way that makes clear to parents the school is relying on information provided by them for all relevant issues concerning the child’s special needs. “It’s hard to offload them a few months into an enrollment if they’ve already been accepted.”
 

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