Paul Upson is an Associate Director at education law specialists, Napier Solicitors. In this Quarterly Education Law Update, he looks at new statutory provisions in relation to bullying in schools.

Introduction

The Addressing Bullying in Schools Act (Northern Ireland) 2016 (“the Act”)[1] comes into force on 1 September 2021.

Section 1 of the Act sets out a legal definition of bullying. Sections 2 and 3 of the Act deals with the duty of the Board of Governors (“the Governors”) to secure measures to prevent bullying; and the duty to keep a record of incidents of bullying (or alleged bullying).

The Department of Education has published Statutory Guidance for Schools and Board of Governors in relation to the Act (“the Statutory Guidance”)[2].

What is bullying?

Definition of bullying

Section 1(1) of the Act sets out the relevant definition of bullying:

In this Act “bullying” includes (but is not limited to) the repeated use of –

a)     any verbal, written or electronic communication,

b)    any other act, or

c)     any combination of those,

by a pupil or a group of pupils against another pupil or group of pupils, with the intention of causing physical or emotional harm to that pupil or group of pupils.

Potential methods of bullying

The potential methods of bullying are widely defined. The Statutory Guidance suggests that the reference to verbal, written or electronic communication could include saying, writing or using online contact and platforms to:

• say mean and hurtful things to, or about, others;
• make fun of others;
• call another pupil mean and hurtful names;
• tell lies or spread false rumours about others;
• try to make other pupils dislike another pupil/s;
• extort from, blackmail or exploit another.

The Statutory Guidance also gives examples of physical bullying including hitting; kicking; pushing; shoving around; locking a pupil/s inside a room, locker etc; material harm such as taking/stealing money or possessions; and other direct/indirect acts.

Repetition

Whilst Section 1 of the Act uses the word “repeated”, there is no requirement for repetition of behaviour for the definition of bullying to be engaged (as Section 1 of the Act is a non-exhaustive definition). The Statutory Guidance says that schools have the discretion to include one-off acts of bullying behaviour within their definition of bullying (provided that their Anti-Bullying Policy makes it clear that, in certain circumstances, one-off acts may be treated as bullying behaviour).

The Statutory Guidance sets out the kinds of factors that a School may wish to take into account when considering whether a one-off act amounts to bullying behaviour. These include the severity and significance of the incident; evidence of pre-meditation; impact of the incident on individuals (physical/emotional); impact of the incidents on wider school community; previous relationships between those involved; and any previous incidents involving the individuals.

Perpetrators and recipients of bullying behaviour

The Statutory Guidance makes it clear that the definition of bullying only applies to pupil-to-pupil bullying. Bullying behaviour can be perpetrated by an individual pupil or a group of pupils. Similarly, the recipient of bullying behaviour can be an individual pupil or a group of pupils.

Intention

The bullying behaviour must be carried out with the “intention of causing physical or emotional harm to a pupil or group of pupils”.

The Statutory Guidance says that “emotional or psychological harm” should be defined as intentionally causing distress or anxiety by scaring, humiliating or affecting adversely a pupil’s self-esteem; and that “physical harm” should be defined as intentionally hurting a pupil by causing injuries such as bruises, broken bones, burns or cuts.

Intention is a relevant factor in the definition of bullying. The Statutory Guidance says that when determining intent to cause harm, schools can use their discretion in assessing an individual pupil’s capacity to understand the impact of their behaviours (e.g. due to development age or disability). The Statutory Guidance also says that if a pupil continues with bullying behaviour, after the school has implemented interventions to respond to the situation, this might be evidence of an intention to harm.

Bullying behaviour by omission

Section 1(2) of the Act makes it clear that both acts, and omissions, are included. The Statutory Guidance says that examples of bullying behaviour by omission might include situations where a pupil is excluded or left out of a group of friends; or excluded or left out of activities or games.

What is the duty to secure measures to prevent bullying?

Section 2(1)(a) of the Act says that Governors must ensure that policies designed to prevent bullying are pursued at their school. The Statutory Guidance says that the Governors must have oversight of the school’s Anti-Bullying Policy and must ensure its effective implementation.

In what circumstances does the Anti-Bullying Policy apply?

Section 2(1)(b) sets out the circumstances where the Anti-Bullying Policy will apply. It should apply to bullying behaviour which occurs:

• on the premises during the school day;
• while travelling to or from the school during the school term;
• while the pupil is in the lawful control or charge of a member of the staff of the school[3]; or
• while the pupil is receiving educational provision arranged on behalf of the school and provided elsewhere than on the premises of the school[4].

How often should the Anti-Bullying Policy be reviewed?

Section 2(1)(c) of the Act says that Governors must review the Anti-Bullying Policy at intervals of no more than 4 years (or sooner – if the Department of Education directs them to do so)[5]. The Statutory Guidance sets out some of the matters that the Governors may wish to take into account when carrying out such a review:

• the number of bullying incidents and the number of alleged bullying incidents not progressed under the Anti-Bullying Policy;
• the method of bullying;
• the motivation behind the bullying incidents;
• how long the bullying went on;
• the responsive intervention(s) employed;
• the effectiveness of the intervention(s);
• the proportion of bullying situations which were successfully resolved;
• the number and type of whole school/class preventative measures;
• the impact of the policy and practice within the whole school;
• the number of pupils, parents and school staff who feel that the school is now a safer environment as a result of anti-bullying policy and practice.

Consultation when revising the Anti-Bullying Policy

Section 2(1)(d) of the Act says that the before revising the Anti-Bullying Policy the Governors should carry out appropriate consultation with the principal, pupils and parents. The Statutory Guidance gives examples of how such consultation could be carried out:

• Circulating a discussion paper with options for pupils, parents/carers, teachers, other staff and Governors to vote on proposed amendments to the policy.
• Circulating a survey for pupils, parents/carers, teachers and governors to seek and act upon their views.
• Facilitating an engagement event for parents/carers to seek and act upon their views (e.g. PTA).
• Facilitating an engagement event for pupils to seek and act upon their views in a meaningful way (e.g. School Council or through a pupil survey).

Access to the Anti-Bullying Policy

Section 2(1)(f) of the Act says that the Governors must ensure that a copy of the Anti-Bullying Policy is given or made available in an appropriate form (and free of Charge) to parents of all pupils and to the staff of the school[6]. The Statutory Guidance says that the Anti-Bullying Policy should be circulated at every parent’s evening and should be available on the school website.

Cyber bullying outside school

As outlined above, Section 2(b) of the Act says that the Governors must determine the measures to be taken at the school with a view to preventing bullying behaviour on the premises during the school day; while travelling to or from the school during the school term; while the pupil is in the lawful control or charge of a member of the staff of the school; or while the pupil is receiving educational provision arranged on behalf of the school and provided elsewhere than on the premises of the school.

Section 2(2) of the Act goes on to say that the Governors may, to such extent as they think reasonable, consider measures to be taken at the school with a view to preventing bullying which involves the use of electronic communication; which takes place in circumstances other than those listed in Section 2(b) of the Act; and which is likely to have a detrimental effect on that pupil's education at the school. Section 2(b) of the Act gives the Governors the power to consider measures in relation to cyber bullying outside school but does not place a duty on them to do so.

Recording incidents of bullying

Section 3(1) of the Act says that the Governors must ensure that a record is kept of all incidents of bullying or alleged bullying involving a pupil at the school that occur on the premises of the school during the school day; while travelling to or from the school during the school term; while the pupil is in the lawful control or charge of a member of the staff of the school; or while the pupil is receiving educational provision arranged on behalf of the school and provided elsewhere than on the premises of the school.

What must be included in the record?

Section 3(2) of the Act says that the record of the incident (or alleged incident) of bullying must state what, from all of the circumstances, appears to be the motivation of the incident; state the method/s of bullying[7]; and include information about how the incident was addressed.

Motivation

Section 3(2) of the Act says that the record must state what, from all of the circumstances, appears to be the motivation of the incident. Section 3(3) of the Act gives some examples of potential motivating factors:

• differences of religious belief, political opinion, racial group, age, sex, sexual orientation or marital status;
• differences between persons with a disability and persons without;
• differences between persons with dependants and persons without;
• differences between persons based on gender reassignment;
• differences between persons based on pregnancy.

The Statutory Guidance makes the point that motivations behind bullying behaviour are wide ranging. The examples of motivations in the Statutory Guidance are wider than in Section 3(2) of the act and include age; appearance; breakdown in peer relationships; community background; political affiliation; gender identity; sexual orientation; pregnancy; marital status; race; religion; disability; ability; child looked after; and young carer status.

Confidentiality

The Statutory Guidance makes some points about the need to ensure confidentiality in relation to the bullying records. Firstly, when a school is recording details of an incident of bullying behaviour it is important to ensure the identities of any child or young person involved are protected and schools should therefore decide which members of staff should have access to the relevant records. Secondly, any reports provided to Governors, to allow them to fulfil their obligations under the Act, should be suitably anonymised.

Conclusion

Whilst the Act is only now being brought into force, it provisions have been available for schools to review for several years. Many schools may have already taken the new provisions into account when preparing or updating their own Anti-Bullying Policy. Even if this is the case, now is a good time for all schools to revisit their Anti-Bullying Policy, including reviewing how bullying is defined and how incidents of bullying are recorded.