Section 91: Enforcement of disciplinary penalties: general
448.This section specifies the conditions that make lawful the imposition of a disciplinary penalty on a pupil at any school at which education is provided for him.
449.Subsection (1) explains that this section applies to any disciplinary penalty imposed on a pupil other than exclusion.
450.Subsections (2), (3), (4) and (5) specify the conditions that must be met for the imposition of a disciplinary penalty to be lawful. They are summarised below.
The penalty does not breach any statutory requirement or prohibition. This would, for example, prevent the imposition of a disciplinary penalty which would involve a breach of race or sex discrimination legislation.
The penalty is reasonable in all the circumstances (subsection (6) specifies issues that must be taken into account in deciding whether the imposition of a penalty is reasonable).
The decision to impose the penalty is made by a member of the staff of the school. Paid members of staff may impose a penalty unless the head teacher has decided they may not impose it. Unpaid members of staff (parent volunteers, for example) may not impose a penalty unless authorised by the head teacher to impose the penalty and where that authorisation is reasonable.
The decision to impose the penalty was made and any action taken on behalf of the school to implement the decision was taken on the school premises or elsewhere at a time when the pupil was under the lawful control or charge of a member of staff of the school (for example on an educational visit).
451.Subsection (6) specifies the considerations to be taken into account in deciding whether the imposition of a penalty is reasonable. They are:
whether the imposition of the punishment is proportionate in the circumstances of the case; and
any relevant personal characteristics of the pupil of which the person imposing the penalty is (or ought reasonably to be) aware, including the pupil’s age, any special educational needs and/or disability he may have and any religious requirements (for example dress) affecting him.
452.Subsection (7) states that, for the purposes of subsection (6) a pupil has a disability if he has a disability for the purposes of the Disability Discrimination Act 1995.
453.Subsection (8) states that a head teacher’s decisions on whether staff should be able to impose penalties on pupils may be made in relation to individual staff or groups of staff; in relation to an individual pupil or pupils; or in relation to an individual penalty or types of penalty. So a head teacher could, for example, decide that only teachers who are heads of year or heads of department could put pupils in detention or that a volunteer helping to supervise an educational visit should be able to withdraw privileges from pupils who misbehave on the visit.
454.Subsection (9) makes detention outside school sessions subject to the additional provisions in section 92.
455.Subsection (10) makes it clear that nothing in this section legitimises corporal punishment.
456.Subsection (11) has the effect that this section does not remove powers that heads and school staff have in addition to the powers conferred by this section. These may include powers conferred on them by the pupil’s parent.
457.Subsection (12) defines a “paid member of staff” as a member of staff who works at the school for pay under a contract of employment or a contract for services. The latter would include supply teachers provided by agencies. The section makes clear that the contract of employment or contract for services need not be made with the governing body or proprietor of the school (so that it includes local education authority employed staff that may be working at the school).