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Excluding a pupil
- 1 When a pupil can be excluded
- 2 Unlawful reasons for exclusion
- 3 Headteachers' responsibilities
- 4 Governors' responsibilities
- 5 Exclusions process: flowchart
- 6 Internal exclusions
- 1 download
- 6 external links
When a pupil can be excluded
The decision to exclude must be lawful, rational, reasonable, fair, and proportionate
A pupil may be excluded for one or more fixed periods, up to a maximum of 45 school days in a single academic year. They can also be excluded permanently.
A decision to permanently exclude a pupil should only be taken:
In response to a serious breach, or persistent breaches, of the school's behaviour policy; and
Where a pupil’s behaviour means that allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school
The guidance does not set a limit on how long after an incident a headteacher can exclude a pupil. A representative from the DfE confirmed this, but added that the decision to exclude must be lawful, rational, reasonable, fair, and proportionate.
In exceptional cases, a fixed-period exclusion can be extended or become a permanent exclusion. This is usually where further evidence has come to light.
This information is set out in statutory guidance from the Department for Education (DfE) which applies to all maintained schools, academies, and pupil referral units in England. The guidance also applies to pupils above or below compulsory school age, such as those attending nursery classes or sixth forms. The guidance is based on the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012.
Behaviour outside of school
Paragraph 4 of the exclusion guidance says that pupils' behaviour outside of school "can be considered as grounds for exclusion".
ACE Education explains:
Pupils can be excluded for behaviour outside school, but this should be in line with the school's behaviour policy. Commonly, this will include behaviour on school trips, behaviour when in uniform or on the way to and from school, and behaviour which may bring the school into disrepute.
ACE Education is an independent advice and information service for parents.
Excluding a pupil in the sixth form
Pupils over compulsory school age are able to be excluded, but this must be for behavioural reasons. We spoke to one of our associate education experts, Emma Swann, who specialises in education law.
Emma confirmed that asking a student to leave for a non-disciplinary reason, such as academic attainment, would constitute an exclusion, and is prohibited under the guidance. A representative from the DfE confirmed that a school can set specific academic standards for entry to year 12, but the expectation is that the pupil will progress to year 13. A school's sixth form student cannot be asked to leave the school for failing to reach a certain academic standard at the end of year 12.
This does not apply to sixth form colleges, as they set their own exclusion policies.
Unlawful reasons for exclusion
Paragraph 13 of the statutory exclusions guidance makes clear that it is unlawful to exclude a pupil for non-disciplinary reasons such as:
It is unlawful to exclude a pupil ... for non-disciplinary reasons
- The actions of the pupil’s parents
- The pupil having additional needs or a disability that the school feels unable to meet
- Academic ability or attainment
- The pupil failing to meet specific conditions before he/she is reinstated
However, the guidance notes that pupils who “repeatedly disobey their teachers’ academic instructions” could be subject to exclusion.
In paragraph 14, it says:
‘Informal’ or ‘unofficial’ exclusions, such as sending pupils home ‘to cool off’, are unlawful, regardless of whether they occur with the agreement of parents or carers. Any exclusion of a pupil, even for short periods of time, must be formally recorded.
The exclusions guidance says only the headteacher or acting headteacher of a school can authorise exclusions. They can withdraw an exclusion if it has not been reviewed by the governing body.
[Headteachers] can withdraw an exclusion if it has not been reviewed by the governing body
When excluding a pupil, headteachers must:
- Take account of their legal duty of care when sending a pupil home following an exclusion
- Apply the civil standard of proof and not the criminal standard of “beyond reasonable doubt” when establishing the facts relating to an exclusion. This means that if something is more likely than not to have occurred (“on the balance of probabilities”) then the standard is met
- Consider a school's responsibilities under the Equality Act 2010 when deciding whether to exclude a pupil. They must not discriminate against, harass or victimise pupils because of their sex, race, disability, religion or belief, gender reassignment, sexual orientation or pregnancy/maternity
- Take account of any contributing factors that are identified after an incident of poor behaviour has occurred. For example, the pupil may have suffered a bereavement or been subject to bullying
Although the decision to exclude rests with the headteacher, where practicable they should give the pupil the opportunity to present their case.
Notifying parents, governors and the LA
A headteacher must notify parents, governors and the LA about exclusions. We explain the details of this in another article from The Key, as well as the responsibility to arrange education for pupils who have been excluded.
The governing body must consider the reinstatement of an excluded pupil in the case of:
- All permanent exclusions
- All fixed-period exclusions of pupils who have been excluded for more than 15 school days in the term, or who will have been as a result of the exclusion
- All fixed-period exclusions that would result in a pupil missing a public examination or National Curriculum test
- All other fixed-period exclusions where a pupil would be excluded for more than five school days in the term and their parents have made representations
We look at this in more detail, including timescales, in another article from The Key.
Exclusions process: flowchart
We have created a flowchart setting out the process schools must follow when excluding a pupil, either permanently or for a fixed period.
To download a copy of the flowchart, click the following link:
The DfE's guidance does not refer to internal exclusions.
Previously, the predecessor to the DfE, the Department for Children, Schools and Families (DSCF), published guidance on internal exclusions.
Internal exclusion is an internal process within the school and is used when the objective is to remove the pupil from class, not from the school site, for disciplinary reasons.
It may be a formal process within the school but it is not a legal exclusion, so exclusions legislation and the department’s guidance on exclusion from school does not apply.
Sending a pupil off site for behavioural reasons is a legal exclusion and has to be dealt with and recorded as such.
It notes that internal exclusion is mainly used in secondary schools.
The guidance is now available in the Institute of Education (IoE) Digital Education Resource Archive (DERA).
An adviser from One Education confirmed that if a pupil is still on the premises and working in isolation, the exclusion will not count as a legal exclusion. There is no statutory maximum period for internal exclusion, but if a school is regularly using internal exclusions, it should look at the pupil's learning and behaviour needs.
Gulshan Kayembe, another of our associate education experts, said the governing body should receive information on the number of significant behaviour incidents in the school, including the number of times internal exclusion has been used, on a "routine basis".
Governors should ensure that the school is not using internal exclusions simply as a way to reduce formal exclusion. Its use should have a positive impact on behaviour levels in the school.
Sources and further reading
Emma Swann specialises in education law at Paris Smith. She advises maintained schools and academies on a wide range of issues including admissions, exclusions, safeguarding, governance, and academy conversion.
Gulshan Kayembe is an independent consultant who has experience of inspecting schools. As a consultant, she provides mentoring for senior leaders and has worked as an external adviser on headteachers’ performance management.
This article was updated in response to a question from the chair of governors at a medium-size urban primary school in the east of England.
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