New report reveals schools ignoring sexual harassment can be sued by girls

School leaders and governors are exposed to legal challenges from girls who are being sexually harassed and abused – Government guidance to schools is also unlawful 

A leading coalition of UK women’s organisations has today published a report which finds that schools are acting unlawfully when they do not take action to tackle sexual harassment and sexual assaults and are exposed to legal challenges by girls and their families.

The Department for Education is similarly in breach of its human rights and equalities obligations to protect girls and could be taken to court.

The new report, titled ‘All Day, Every Day: Legal obligations on schools to prevent and respond to sexual harassment and violence against girls,’ follows the publication earlier this month (13 September 2016) of a report by MPs which found shocking levels of abuse and harassment of girls in schools and called on the government to instruct schools to reform bullying policies and deliver compulsory Sex and Relationships Education (SRE).

The 26pp report from the End Violence Against Women Coalition, which includes a new in-depth legal opinion from leading human rights and equalities lawyer Louise Whitfield, also finds that current statutory guidance from the Department for Education on school safeguarding and child protection does not enable schools to ensure girls have equal access to a safe education and may be unlawful, leaving the DfE similarly open to lawsuit.

The legal opinion in the briefing is comparable to that which has been examined and accepted by the ongoing Universities UK Taskforce on sexual harassment and abuse.

The report calls on the government to urgently provide schools with clear and specific guidance on their legal obligations towards girls, and calls on schools to review how they respond to sexual harassment and violence experienced by girls, and to put in place new policies and practices. It specifically finds that schools responding to sexual assault allegations by saying they will wait until the police conduct a criminal investigation is unlawful.

‘All Day, Every Day’ looks at schools’ policies with regard to human rights and equalities laws and finds that:

• Schools responding to allegations of sexual assault by saying they will wait or take no action until the police investigate is unlawful
• The Government’s key guidance in this area – Keeping Children Safe in Education – does not recognise the very disproportionate risk of sexual harassment and assault faced by girls nor set out how schools should respond and as such is unlawful
• Schools’ duty of care to pupils, already recognised and insured against for situations of personal injury, extends to taking reasonable steps to ensure children are safe from injurious behaviour by other pupils; failure in this area could result in a personal injury claim.

End Violence Against Women Coalition Co-Director Rachel Krys said:

“When a school fails to address sexual harassment and violence effectively there can be serious long-term consequences for individual pupils and for the whole school community.

“Girls and boys may learn that such abuse is not regarded as important by adults, that the perpetrators of such abuse are rarely challenged and have significant impunity, and that perhaps such behaviour is a ‘normal’ part of the conduct of relations between adult men and women.

“If a school fails in this area, individual girls may find it difficult to continue with their education and some drop out of school altogether. This discriminates against girls, and the school is likely to be in breach of its legal obligations and the positive duties to protect pupils which are placed on schools.

The government should urgently rewrite its guidance for schools and introduce mandatory sex and relationship education for all school children. Schools should look at their policies and practices to ensure they are not failing girls by breeching their human rights, and parents should join us in demanding urgent change to ensure schools are safe for girls.”

Specialist lawyer and briefing co-author Louise Whitfield said:

“The law is clear that girls are entitled to protection from harassment and abuse when in school, but there is overwhelming evidence that girls in school are routinely subjected to harassment and abuse which indicates that schools are failing.

“Any current school policy or practice UK which would lead them for example not to investigate an allegation of sexual assault and to regard it as purely a police matter, or to minimize and ignore sexual harassment, are failing to protect girls and are very likely to be in breach of the law. 

“Similarly, the key statutory guidance to schools in this area – the DfE’s ‘Keeping Children Safe in Education’ document – fails to adequately take into account human rights and equality law and as such is open to legal challenge.”

It is important the government look carefully at this briefing, alongside the report by the Women & Equalities Select Committee. Responding to that report the Government said that the police were always involved in allegations of sexual assault and that sex and relationships education is already mandatory in maintained secondary schools. This is misrepresentation of current policy and practice, and displays an extraordinarily complacent attitude to the alarming findings by this important inquiry.

Over 40,000 people have signed the petition calling for the introduction of compulsory sex and relationships education for all children in England.

The report is available here.