Exclusions are always difficult matters for everyone concerned. Governors should first make themselves aware of the Department for Education guidance on the exclusion process.

Exclusions committee

The governing body must establish a committee for the purpose of reviewing exclusions and to hear representations from parents. The governing body can establish a pool of governors from which the committee is to be drawn as required; the quorum for the committee is at least three, and a clerk should be appointed to this committee. It is very important that the governors and clerk on this panel receive appropriate training to equip them to discharge their duties properly. Most local authorities provide exclusions training.

Exclusions are subject to slightly differing procedures, dependant on the extent and nature of the exclusion.

Fixed period exclusions

In the case of one or more fixed period exclusions totalling five days or less in any one term, the governing body discipline committee is required to consider representations made by a parent. Governors have no power to direct reinstatement in cases where the number of days the pupil has been excluded in a single term is five days or less. Governors are required to consider any representations made by the parent but are not required to meet although it can be helpful if they do so.

In cases of one or more fixed period exclusions more than five days but not more than 15 days in any one term, a discipline committee meeting must be held within 50 school days after receiving the notice of exclusion, to consider the exclusion, if the parent requests this. Where the governors consider it appropriate they can direct reinstatement. If the governors cannot direct reinstatement because the period of exclusion has expired and the pupil has returned to school, they can place a copy of their findings on his or her school record.

Permanent exclusions

In the case of a permanent exclusion, or one or more fixed period exclusions totalling more than 15 school days in any one term, or where a student would miss a public examination, the committee must convene a meeting within 15 school days after the date of receipt of the notification to consider the exclusion.

There are no restrictions on the number of exclusions that can be considered at any one meeting provided that the timescales for hearing representations are adhered to. Pupils who are excluded, who may miss an examination as a result of the exclusion, should have their exclusion considered by the committee wherever possible before the examination date. Exceptionally, where it is not practical for the committee to meet before the date of the public examination, the chair of governors, using their power to act in an emergency, may consider the exclusion and determine whether to reinstate.

Procedures

When the committee is required to meet to consider an exclusion:
Where possible circulate any written evidence and information, including a list of those who will be present, to all parties, at least five schools days in advance of the meeting and give the parents the opportunity to make representations.

At the hearing there are two questions that the committee should be seeking to answer. Firstly, have the school's procedures relating to discipline been carried out fairly and fully? Secondly, was the action of the headteacher in excluding the pupil appropriate, in the light of the circumstances?

Where the procedures have been carried out fully, the investigation should have determined an appropriate course of action. Consequently, in the majority of instances, the action of the headteacher in excluding a pupil is unlikely to cause concern and should receive the support of the committee, notwithstanding any representations made by parents and other education specialists.

In a minority of cases the procedures that lead up to the exclusion and the subsequent action by the headteacher may not be entirely appropriate and may raise doubts in the minds of the committee. In these instances the committee should be prepared to overturn an exclusion, where they are entitled to do so. The committee's function is not merely to rubber stamp the action of the headteacher, but rather to consider objectively whether the action was appropriate.

Where the committee does not support the head's actions this may sometimes be interpreted as a betrayal of the staff or an attempt to undermine the authority of the head. Overturning a decision should not be seen as either of these, where the committee believes the process and thus the decision could be judged unfair because the action of the headteacher was not appropriate and/or procedures were not followed.

The committee is, in fact, fulfilling the function for which it was put in place, and the majority of heads will recognise this. It is also a reminder to all staff to ensure that their actions are appropriate and school policy and procedures are followed carefully and diligently. The appeals procedure is thereby seen to be properly employed.

Independent review

The exclusion hearing is very much within the control of the school. The external hearing, which results from action to permanently exclude a pupil, is independent of the school although the process is similar.
New rules apply from September 2012. Where the independent panel fails to uphold the action to permanently exclude a pupil, they can decide to:-

  • Uphold the exclusion decision
  • Recommend that the governing body reconsiders their decision or
  • Quash the decision and direct that the governing body considers the exclusion again.

When considering the governing body’s decision in light of the principles applicable in an application for judicial review, the panel should apply the following tests:

  • Illegality – did the headteacher and/or governing body act outside the scope of their legal powers in taking the decision to exclude?
  • Irrationality – was the decision of the governing body not to reinstate the pupil so unreasonable that it was not one a sensible person could have made?
  • Procedural impropriety – was the process of exclusion and the governing body’s consideration so unfair or flawed that justice was clearly not done?

Procedural impropriety means not simply a breach of minor points of procedure but something more substantive that has a significant impact on the quality of the decision making process. This will be a judgement for the panel to make but the following are examples of the types of things that could give rise to procedural impropriety: bias; failing to notify parents of their right to make representations; the governing body making a decision without having given parents an opportunity to make representations; failing to give reasons for a decision; or being a judge in your own cause (for example, if the headteacher who took the decision to exclude were also to vote on whether to uphold the exclusion).

Where the criteria for quashing a decision have not been met the panel should consider whether it would be appropriate to recommend that a governing body reconsiders their decision not to reinstate the pupil. This should not be the default option, but should be used where evidence or procedural flaws have been identified that do not meet the criteria for quashing the decision but which the panel believe justify a reconsideration of the governing body’s decision.

In all other cases the panel should uphold the exclusion.
The external appeal panel’s decision cannot be appealed and their decision is final. Decisions of the external appeal panel can cause the greatest concern for schools, governors, staff and parents. This is particularly true when the reason for the exclusion centres, for example, around alleged physical attacks on staff or other pupils and, naturally, the response of staff and parents to a re-instatement is one of horror.

The concerns of staff for their safety may result in a refusal to work with the pupil and the courts have had some sympathy for this view. There is all the more reason to ensure that the local authority and the school work together on a strategy for the pupil's return, and look to reassure staff, pupils and parents that appropriate measures are in place.

From the governors' perspective this can be the most difficult situation they are likely to face. As employers they have a duty of care to protect staff from possible injury resulting from their work in school.

They must also ensure the safety of pupils and others who periodically visit the school. At the same time they are obligated to provide for the education of all pupils assigned to the school, including those who have been reinstated by an external appeals committee and to ensure that all that can be done is done to provide a good education.

It is mandatory for all governors as well as the clerk to the independent appeal panel to receive appropriate training.