When is exclusion for serious misconduct justified, and how careful must a headteacher be in excluding a pupil?

The case of Appiah and Another v Governing Body of Bishop Douglass Roman Catholic High School [2007] ELR 217, CA, concerned a fight in the sixth-form common room between two black pupils and two white pupils. The black pupils, R and F, were in their final year, and were due to complete their GNVQ courses in the summer. One of the white pupils sustained a head injury, and had to be taken to hospital. The head of the sixth form asked R and F to go home while he carried out an investigation. He took statements, and passed them on to the head teacher, who concluded that R and F had started the incident, and had used excessive violence.

The exclusion

The head teacher wrote to the parents of R and F telling them that neither R nor F could come back to school, but that they would be given help in completing their course at home. He should, of course, have told the parents immediately, ideally by telephone followed by a letter, of their right to make representations to the governing body, whom to contact about making representations, and of the ACE exclusions helpline. The local authority told the head that the terms of the exclusion did not meet statutory requirements. He therefore wrote to the parents telling them that he had decided to exclude R and F for 45 days, and that the governors’ discipline panel would meet to consider his decision. The 45 days amounted to permanent exclusion, because it ended when R and F would have left school on study leave to prepare for their final exams. After an unnecessary and unexplained delay, the panel met and, in the case of each pupil, decided that the head teacher had acted reasonably, and that 45 days’ exclusion was the appropriate sanction.

Racial discrimination claim

R and F began proceedings in a County Court, alleging that the school had discriminated against them unfairly on the ground of race, by excluding them permanently, and by upholding the decision to exclude them for 45 days. The Race Relations Act 1976 says that a person discriminates against another if on racial grounds s/he treats that person less favourably than s/he treats other people. R and F said that they had been treated less favourably than the two white pupils. Where a claimant proves facts from which the court could conclude that the respondent has committed an act of discrimination, the court must uphold the claim unless the respondent proves that s/he did not commit the act. The county court decided that R and F had not proved racial discrimination, and that even if they had, the school would have proved that it did not commit the act.

Court of Appeal

R and F went to the Court of Appeal. They said that the judge should have found that the school had a racist ethos and had been guilty of unconscious discrimination, i.e. that discriminatory assumptions frequently underpin the stated reasons, even when the reason is given in good faith and generally believed, and even if the discriminator is unaware that such assumptions are operating. The Court of Appeal pointed out that R and F’s submission in the county court was of overt, conscious racism, and it was not prepared to find that there had been unconscious discrimination.

The decision

The Court of Appeal said that, unlike the ordinary civil claim where the judge decides, on the claimant’s evidence only, whether the claimant has made out a case, in this case the judge had had the benefit of the whole of the evidence. Despite the school’s failure to comply with the statutory requirements, the judge had been entitled to find on the basis of all the evidence that R and F had not proved racial discrimination. Even if R and F had made out a prima facie case, and the burden of proof had been transferred to the school, the judge was entitled to find, as he did, that the school had disproved discrimination on racial grounds.

The Court of Appeal concluded: ‘The school was culpable in certain respects … in devising an apparently unlawful form of exclusion, in selling the parents short when concerns were being expressed, and in the long delay in holding the governors’ meeting. However … [the judge] was entitled to conclude as he did.’