No matter how watertight the contract with parents, schools must implement it correctly and fairly if they want removal of a pupil to be upheld, says Mark Blois

Readers will remember the extensive media coverage given in 2006 to Russell Gray’s attempt to prevent the exclusion of his son from Marlborough College. Mr Gray’s legal challenge to the ‘degree of freedom independent schools are able to write into their contracts to give them carte blanche to expel children’ was unprecedented in independent school history. The case went ultimately to the Court of Appeal.

Now that the dust has settled what, if anything, does this case mean for independent schools?

Rhys Gray started as a boarder at Marlborough College in September 2002. He remained at the college for three years until the summer term 2005, at the end of his GCSE year. During his time at Marlborough, Rhys accumulated a record of 398 minor disciplinary offences. Of these, 203 occurred during his GCSE year. This number was seven times greater than the average for his peers.

During the legal proceedings, Rhys’ housemaster at Marlborough gave evidence to the court in which he said of Rhys that ‘he has focused on having fun … I believe that he has felt that the school rules got in the way of his having fun. Rhys sometimes accumulated so many Saturday night detentions that there was not enough time to work them off. Rhys was the most poorly behaved boy I have had in my care and experience of 20 years of living in a boarding house.’

In May 2005, the college said: ‘Rhys’ conduct and progress have been unsatisfactory and … he is either unwilling or unable to profit from the educational opportunities offered here. He is quite clearly … [finding] the prospect of life at Marlborough unsustainable and I have, therefore, to inform you that … Rhys should leave Marlborough at the conclusion of the current academic year’.

In August 2005, Mr Gray issued issued a legal challenge to the college. He also applied for an injunction requiring the college to take Rhys back in advance of a judge’s decision on the lawfulness of the exclusion.

In the event, Mr Gray abandoned his demand for Rhys’ reinstatement, saying that the college had broken his trust and confidence and he no longer wished his son to attend. But he continued to seek a declaration that Rhys’ removal from the college had been unlawful.

WHY WAS REMOVAL ‘UNLAWFUL’?

Mr Gray argued that Rhys’ removal was unlawful on two grounds:

Breach of contract

Mr Gray said that the college was in breach of an express term of the contract between himself and the college that, before making any decision to remove Rhys, the college would consult with Mr Gray.

Marlborough accepted that it had an express contractual obligation to consult, but argued that it had complied with this obligation.

WHAT DID THE CONTRACT SAY?

The contractual provision under which the college purported to have acted in requiring Rhys’ removal  was paragraph 6(a) of its ‘standard terms and conditions’, part of the college’s implementation of obligations imposed upon it by the Education (Independent School Standards) (England) Regulations 2003.

6 (a) Removal at the request of the school: parents may be required during or at the end of a term to remove the pupil without refund of fees temporarily or permanently from the school if after consultation with a parent the master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil in the judgment of the master is unwilling or unable to profit from the educational opportunities offered and in any such case removal is considered to be warranted.’

This term was distinct from paragraph 6(b), which provided for ‘expulsion’ for a very serious breach of school discipline. The college argued that 6(a) entitled the master of the college to require removal for less serious misconduct, and also for a non-disciplinary reason such as insufficient academic progress and/or unwillingness or inability to benefit from the school’s educational regime.

Unfair contract terms

The ‘required removal’ terms in Marlborough’s contract had been made subject to a requirement for consultation for good reason. Any contractual term that purports to give an independent school an unfettered right to terminate a pupil’s place at any time is likely to be vulnerable to challenge under the Unfair Terms in Consumer Contracts Regulations 1999.

Public law duties

The second ground on which Mr Gray argued the removal to be unlawful was based on public law. He said that the college was in breach of an implied contractual duty to act with procedural fairness because it had not held a disciplinary hearing before requiring Rhys’ removal.

In this respect, Mr Gray sought to establish that Marlborough College bore implied contractual obligations that mirrored public law obligations borne by state schools in similar circumstances.

Whereas local authorities and state schools have statutory obligations to provide for the education of pupils, the exclusion of whom is governed by detailed statutory rules and procedures, there will rarely be a public law element to a dispute between an independent school and one of its pupils.

Marlborough denied the relevance of public law duties applicable to state schools. It accepted that it had some form of implied contractual obligation to act fairly — but argued that it had complied with this obligation.

In September 2005, at Southampton County Court, the judge, dismissing Mr Gray’s claim, accepted that the question was whether the college had acted in breach of any of the terms of the contract (whether express or implied), not whether it had complied with public law duties applicable to state schools.

On the evidence, the judge found that the decision to require Rhys’ removal was justified, as it met the criteria in term 6(a) of the contract (see above). He found that the procedures adopted by the college giving rise to that decision were fair.

Specifically, it had been made clear to Mr Gray on a number of occasions (in correspondence, reports and conversations) that the consequences of Rhys’ failure to mend his ways would be removal.

The court also accepted that Marlborough had tried to rectify the problems with Rhys constructively, before deciding on his removal.

The judge said: ‘I do not think there was any conspicuous unfairness … it is manifestly wrong to say that there was no consultation … the college was really doing its best to place the position squarely and firmly before Mr Gray so that he would know exactly where he stood.’

Against this background it was found that there had been reasonable consultation with Rhys’ parents and that the college’s decision to remove him had been justified contractually.

Mr Gray accepted that Rhys’ removal had met the criteria in term 6(a) of the contract. But he continued his legal fight, obtaining leave to appeal to the Court of Appeal for a declaration that the college was in breach of:

  • the express term of the parent contract by failing adequately to consult with Mr Gray before taking the decision and/or
  • an implied term that it would behave fairly towards Mr Gray and his son

In particular, Mr Gray alleged that there had been a failure by the college in:

  • not having or providing to him a written policy indicating that a pupil’s removal could be required for a series of minor misdemeanours
  • not informing him that Rhys was at risk of the college requiring his removal, and the reasons for such risk, in particular reasons based on matters current at, or about, the time of the decision
  • not instituting a formal complaints procedure supported by full disclosure and followed by an oral hearing at which Mr Gray and Rhys would have been able to make representations

In a judgment published in September 2006, the Court of Appeal upheld the decision of the trial judge that Marlborough College was justified in requiring Rhys’ removal at the end of his GCSE year.

The key issue was whether the college had been in breach of its express contractual duty to consult Mr Gray before deciding on Rhys’ removal. But, whatever the express terms of the contract, it was confirmed that independent schools are under an implied contractual obligation to act fairly in requiring the removal or expulsion of a pupil.

State school guidance not applicable

While confirmation of this implied term to act fairly imported public law principles, the prescriptive guidance applicable to state schools, although a starting point, was ultimately not applicable in the independent sector.
The Court of Appeal said: ‘it is trite law that fairness is a flexible principle and highly fact-sensitive in its application’.

Meaning of ‘consult’ and ‘fairness’

The duty to consult and be fair with a parent meant:

  • consulting before removal
  • giving sufficient information, reasons for and warning of the impending decision
  • giving time and opportunity for representations, and for due consideration of such representations

The Court of Appeal found that the college’s consultation with Mr Gray had been ‘apt and adequate’. The college had written Mr Gray several letters indicating clearly the nature of the concerns. Further attempts at dialogue with the Mr Gray had been ‘a dialogue of the deaf’.

In fact, the college had not merely consulted with Mr Gray but had issued a series of warnings in correspondence to, and conversations with, him.

It has always been clear that a legal challenge may arise if an independent school’s contract with parents is unclear over whether the school has a right to withdraw a pupil’s place over disciplinary issues, and what period of notice is required to do so.

The Gray v Marlborough College case is a useful reminder that, no matter how watertight the contract might be, the school must implement it correctly and fairly.

Principles analogous to public law and natural justice (absence of bias, sufficient knowledge of the charges, time to prepare, the right to be heard) will be implied into a contract if a legal challenge is made to the removal or exclusion of a pupil on the basis that it was procedurally defective.

Mark Blois is a partner at Browne Jacobson solicitors.

‘Expelled Marlborough boy promises to mend his ways: www.timesonline.co.uk/article/0,,2-1800856,00.html

You can read the full text of the Court of Appeal judgment at: www.bailii.org/ew/cases/EWCA/Civ/2006/1262.html

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