 | | | | by Charlotte Reynolds |
A girl at my school used to get called names. She didn't tell teacher, she didn't have a nervous breakdown, and she certainly didn't sue anybody. She did go on to get a first-class degree from Oxford and is now more successful than anybody from her class - arguably the best kind of up-yours to the girls who called her names.
| Not so for the Sale grammar school pupil who in October 2000 won £1500 from his school for failing to protect him from verbal bullying. The boy - now 17 - was branded a 'lanky loner' by three classmates. He went on to gain 10 A-grade GCSEs and is now studying for four A-levels at a different school - but rather than being congratulated for his academic success he is being applauded for making legal history as the first victim of verbal bullying to win damages (1).
| In the same week, Leah Bradford-Smart launched a High Court battle against her local education authority. She claimed £75,000 damages for psychological and personal injuries, including an allegation that her future job prospects had been ruined as a result of bullying. Her claim was unsuccessful, because most of the bullying happened outside of school hours - but this is little more than a technicality (2).
| The phenomenon of victims of bullying suing their schools and education authorities first emerged in 1994, when Sebastian Sharp started an action against the Shene school in Richmond. He claimed he had been the butt of derogatory remarks, teasing and name-calling, and that the school's failure to protect him had ruined his life - he won £30,000 damages. Many more claims have followed - and with the introduction of the Human Rights Act bullying compensation cases look set to rise. The 'right to an education' and the 'right to be free from degrading treatment' both offer new bases upon which to sue local education authorities (LEAs).
| But the Human Rights Act is not the only thing making life easier for potential litigants. The definition of bullying has been extended to include a wide range of behaviour and experience. According to the National Association of Head Teachers' bullying guidelines, bullying can be 'physical, verbal, emotional, racist or sexual', and includes 'sarcasm, gestures, and exclusion from social groups'. And just in case that leaves anything out, the guidelines go on to say that 'while others may not feel that certain actions or words are of a bullying nature, if the recipient feels they are being bullied that is sufficient evidence to treat the case as prima facie bullying' (3). Something as innocent as choosing your best friend to be on your netball team could be interpreted as 'exclusion from a social group' by those not chosen.
| When almost anything can be interpreted as bullying, the scope for compensation claims against schools and LEAs is enormous. It is not necessary for the potential litigant to have suffered any physical harm. What really matters is how they feel - and, more importantly, how they feel a few years later. Claims for compensation usually include the allegation that as a result of being bullied the victim underachieved or failed to reach their potential in life.
| | | Bullying can include 'sarcasm, gestures and exclusion from social groups' |
| Those in favour of the litigation solution argue that by making schools and LEAs liable to compensate victims of bullying, they will be encouraged to do more to prevent bullying in the future. But the impact of such litigation is not to raise standards in schools and empower individuals to get over their experiences - it is the opposite. Parents blame the teachers, teachers blame the LEAs, LEAs blame the headteachers, and bullies (remember, they are victims too) blame their parents. The inability of victims to cope with their situation is compounded; the ability of teachers to teach is undermined; and the inability of the educational establishment to take responsibility for policy and future direction is intensified.
| Educational policy used to be worked out through the democratic process. The proper role of teachers and the scope of their duty were questions for government, in consultation with LEAs and other educational bodies. Today, these issues are increasingly being resolved in the courts. Judges have moved into the classroom and are taking decisions with far-reaching implications for both teachers and pupils. The educational establishment has lost the confidence to decide questions such as how to deal with bullying, and the law is moving in to fill the void.
| And as for the rest of us - when failure in life becomes the basis for a lump-sum compensation, where's the incentive to succeed?
| (1) See the Guardian, 24 October 2000
(2) See the Guardian, 9 November 2000
(3) See the National Association of Head Teachers website
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