Introduction

Welcome to our first 2024 News in Brief.  As we start the new year, the education sector continues to face a number of challenges.  In particular, mental health and wellbeing remains a key issue for the sector and inextricably linked to that is concerns with regards to teacher recruitment and retention.  It will be interesting to see what, if anything, the Government does to try and address these issues in the new year.  However, as we all know, we are looking at a general election later in the year and therefore uncertainty as to any new policies affecting the education sector will inevitably remain. 

On a positive note, as a solicitor working with many dedicated professionals in the sector, it is always a delight to see how committed the school and college staff are to their students, inspiring them everyday to be the best that they can. 

We would love to hear about any particular challenges you may be facing or if there is anything else we can help with please don’t hesitate to get in touch.

Caroline Hardcastle - Head of Education

Gender Questioning Children – has this clarified matters?

In December the Government finally released their long-awaited draft guidance on Gender Questioning Children.  I think it is fair to say, from the sectors initial response, that as currently drafted, there remains concerns and questions for schools and colleges as to the approach which they should take towards any child questioning their gender.  The consultation on the draft guidance ends on 12 March and interested parties are encouraged to respond to the draft. 

The guidance sets out five general principles which schools and colleges can use to frame their response to requests by a parent or child to accommodate a child who is questioning their gender.  The principles are:

• Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
• Schools and colleges should be respectful and tolerant places where bullying is never tolerated.  
• Parents should not be excluded from decisions taken by the school or college relating to a request for a child to socially transition. 
• Schools and colleges have specific legal duties that are framed by a child’s biological sex.  
• There is no general duty to allow a child to social transition. 

How the above principles should be applied in practice is set out, to some extent, in the draft guidance.  However, there remains uncertainty within the draft guidance and inevitably, schools and colleges are still going to have to navigate carefully the many differing views of parents and students.  Perhaps, following the consultation period some of the initial questions will be addressed.  At present, schools and colleges are not required to adhere to the draft guidance nor change any current policies and procedures which they have in place. 

We will look at this topic again in the summer once the consultation process has ended but for now, it will be interesting to see all the commentary regarding the proposed application of the guidance.  Whether or not the final guidance will address the concerns and the balancing acts which schools have had to undertake remains to be seen and I suspect that schools will continue to face difficult decisions dealing with this complex issue. 

UK Information Commissioner Publishes New Staff Monitoring Guidance

Towards the end of last year, the ICO finally published its guidance document on monitoring workers under UK GDPR.  The guidance was long awaited, as the GDPR originally came into force in May 2018 but until last year the ICO had not actually published any substantive guidance document on how to ensure that monitoring of workers (e.g. CCTV and monitoring staff email/internet usage) was compliant with data protection law post-Data Protection Act 1998.  Rather, for the first half a decade of the GDPR’s existence, employers still had to use the ICO’s old ‘Employment Practices Code’ in November 2011 and do their best to estimate how the ICO would interpret it under UK GDPR and the Data Protection Act 2018.  This was not ideal, and therefore the belated introduction of the ICO’s new guidance is welcome overall.

Thankfully, in many respects the new guidance is consistent with the older Employment Practices Code and many of differences are updates to the related terminology.  For example, (i) monitoring must still be proportionate having regard to the purpose and related intrusion into workers’ private lives, (ii) workers must generally be told in advance that monitoring may occur and the reasons why (albeit in a more GDPR-transparent way than before) and (iii) covert monitoring is generally a ‘no go’ except for in extremely limited circumstances (i.e. there are reasonable grounds for suspecting criminal activity or equivalent malpractice and detecting it would be prejudiced by notifying individuals of the monitoring).

A more notable update however is the ICO’s stated position on having a valid lawful basis for processing special category data when using CCTV and monitoring staff emails.  Under the old guidance, it was effectively only necessary to have a valid legal basis for processing such sensitive personal data if the monitoring would actually involve the collection of such sensitive data, and as such historically many employers have justified the use of CCTV and email monitoring simply on the basis that it is necessary for their legitimate interests in site security and ensuring compliance with IT policies and procedures (without also citing a separate lawful basis for processing special category data).

Under the new guidance however, the ICO specifically states the ICO’s view that any email monitoring is “likely to capture special category data” and therefore a separate lawful basis for processing such sensitive data must be identified in order to conduct email monitoring.  The ICO also notes that it is possible that CCTV will “accidentally capture special category data”.  As such, based on the ICO’s guidance it will be necessary to identify a valid lawful basis under article 9 for processing special category data for such monitoring.  This is likely to be easier for CCTV than staff email monitoring assuming that the principal reason for staff email monitoring is compliance with internal procedures.  

As such, it would be sensible for all providers to review their email monitoring arrangements to identify if any additional steps can be taken to ensure that it is “not likely” that special category data will be captured as part of their email monitoring.