CA-2025-002133 - [2025] EWCA Civ 1335

Ground 2: Lawful application of the Behaviour Policy

This is a challenge to the judge’s decision on Challenge 1. It contends that permanent exclusion could only be justified if the one-off incident for which it was imposed was “extremely serious”. That is because that is what it says in the Behaviour Policy, which the Headteacher expressly mentioned in his letter. The GDC did not say that they had decided to depart from the Policy or give any reason why it would be appropriate to do so. Therefore, they had a duty to follow it. The complaint is that neither the Headteacher nor the GDC ever considered whether the conduct was “extremely serious” and, to the extent that they may have done, any decision to this effect was unreasonable. These complaints are of process irrationality and outcome irrationality respectively, in the sense explained at [42] above.

On occasions Mr Greatorex has complained that Mr Persey said something to us which was “new” or that a point “had not been raised before”. An example of this is the submission I have referred to above that the conduct of SAG had been “serious” but not “extremely serious”. In my judgment this complaint carries no weight. The judge recorded, at his paragraph 41, Mr Persey’s submissions on Challenge 1 as including this point:-

“It was unreasonable to find that Claimant entering a teacher’s room to retrieve her own mobile phone was an ‘extremely serious’ one-off incident as referred to in the School’s Behaviour Policy.”

The judge says this in his decision on Challenge 1 at his paragraph 46:-

“In particular, determining whether a case is ‘extremely serious’ or a breach is ‘serious’ and whether allowing a pupil to remain in school would ‘seriously harm’ others involves an evaluative judgment by the person in whom the discretion is vested.”

He was therefore alive to the difference between “serious” misconduct and “extremely serious” misconduct and its significance in the Behaviour Policy. The issue was squarely before him for decision and whether or not Mr Persey used exactly the same formulation of the point below as he did before us is at best a debating point. The judge’s point was not that there was no difference but that the decision involved an evaluative judgment. He appeared to have thought that so categorising it effectively precludes the court’s intervention. He then said, at paragraph 51:-

“In the first instance, it is for the headteacher to determine whether an incident is ‘extremely serious’. In this case the Headteacher, making an evaluative judgment, determined that having a mobile phone with a SIM card and being found in a teacher’s room without permission amounted to serious breach of the School’s behaviour policy.”

The judge therefore knew well that the issue for the decision-makers was whether the conduct could properly be described as “extremely” serious”. As he correctly records, but does not develop, they did not in fact ever expressly consider that distinction or make any determination that the conduct was, in their evaluative judgment, “extremely serious” and therefore more than merely “serious”. I do not accept Mr Greatorex’s submission concerning the word “extremely” that “it is always difficult to say what such intensifiers add”. Not unlike the less forceful adverb in the expression “really serious bodily harm” the word “extremely” has a clear meaning which is capable of being given effect. The phrase “extremely serious” in a policy regulating misconduct does mean something different from “serious” and the failure of the Headteacher to address this difference, and that of the GDC on either of the occasions when they dealt with the case is, to my mind, clearly fatal to their decision.

I have set out paragraph 16 of the Guidance at [6] above, and the relevant part of the Behaviour Policy at [9]. Paragraph 16 of the Guidance gives a list of types of behaviour which “may warrant a suspension or permanent exclusion”. The Behaviour Policy gives a list of types of behaviour which may warrant permanent exclusion for a one-off “extremely serious” incident. This includes “serious acts of violence” and “violence involving a weapon”. It also includes “drug misuse (which includes vaping and being in possession of vapes/illegal substances)”. There was discussion during the hearing about why vaping appears in this list, as it may introduce a rather less serious kind of behaviour into a list of criminal conduct. We are not considering a challenge to permanent exclusion on the basis of a single act of vaping. In these circumstances it is not necessary, in my view, to consider further why it appears in that list. This is, in any event, a point on which we have no evidence. It seems to me that taking both lists together the examples which are given of misconduct are a useful guide to decision-makers who have to decide whether misbehaviour is sufficiently serious to warrant suspension, or whether its level is more serious such that it warrants exclusion. Set against that guide, it seems to me that a finding that this incident was “extremely serious” would be unreasonable, which is perhaps why neither the Headteacher nor the GDC ever felt able to state in terms that it was. They must be taken to know their own policy. The assessment of the seriousness of an incident includes an assessment of culpability and harm. That is expressly the case in criminal sentencing, but the approach is of general application when deciding on sanctions for misconduct. The harm here was not physical injury or fear of physical injury, neither was it loss of property, nor did it involve the possession or use of controlled drugs. It involved deliberate defiance of authority by a 14-year old child who wished to recover her phone so she could make contact with her mother, as was accepted in terms by the Headteacher at the hearing. At the time she was with others and they appear to have taken a joint decision to do this. The intrusion into the room of the teacher was serious for all the reasons given by the Headteacher and the GDC, but it was necessary to retain a sense of proportion. The suggestion at paragraph 3(10) of the reconsideration letter that the teachers involved in the incident had felt “vulnerable” had not been made at the hearing by the Headteacher, and was not supported by evidence. I have no difficulty accepting, in the absence of evidence, that they felt let down and, probably, annoyed. But a finding that they felt “vulnerable” seems to me to underestimate the resilience of the teaching staff of the School. I refer to the Headteacher’s response during the hearing when asked whether any teacher had expressed a reluctance to teach SAG in future, see [26] above. None had. I accept Mr Persey’s submission (dealt with further below) that in this case there was only one reasonable conclusion to which the decision-maker could properly come, namely that this misconduct, though serious, was not “extremely serious”. This is, after all, the conclusion to which the GDC did come at the first reinstatement hearing in March, before they had an inappropriate conversation with the Headteacher.

This conclusion involves upholding Ground 2, but also involves Ground 3. The judge gave deference to the “evaluative judgment” of the decision maker, and that complaint is that this decision resulted from his failure to apply a heightened standard of review. I shall therefore move to Ground 3.