Fi McMillan, Senior Associate at Anderson Lloyd, continues her series on education law. In Part 2, she highlights the legal issues that education professionals face, with a focus on the recently implemented Privacy Act 2020. Follow her series here.
When attendees at a recent Education Law conference were asked to identify the two biggest challenges they were facing, the almost unanimous responses were “dealing with legal issues” and staffing. The conference attendees were not lawyers, but principals, deputy principals and other senior staff, and members of the school Board of Trustees. Non-school staff, including lawyers, tend to imagine that teachers and trustees will be focusing on education issues, so the response was something of a surprise.
Schools have always had to meet statutory requirements with regard to privacy law, family law, health and safety, employment law, etc., but it seems that this is becoming increasingly onerous, and the consequences of failing to comply have become, in some instances, potentially more serious. The Privacy Act 2020 for example, which came into force on 1 December last year, includes mandatory reporting of significant privacy breaches. Unless properly managed, dealing with legal issues will take valuable time away from the school’s most important work; education.
As in our last article (Knowing your Collective), the key is to be prepared. When dealing with legal issues “being prepared” will include making sure that appropriate policies and processes have been implemented in consultation with your community, and that these are kept up-to-date with legal requirements. Resources and template policies are available from a number of sources, and once you have them you need to follow them. Many principals have contacted us at PASL seeking advice when a complaint has come in and the Board has not followed the school’s complaints policy. The Employment Court has said that a fair and reasonable employer will follow its own policies, so if a Board or principal fail to do so then they are at risk of breaching employment law requirements.
As an immediate priority we suggest that now is a good time to review privacy practices. The new Privacy Act includes some requirements which are directly relevant to schools; you will need to be very careful, for example, about how you collect personal information from children and young people (Information Principle 4), and if you still have international students there are new requirements regarding transfer of personal information off shore. The start of the 2021 school year should include a check that all staff and trustees know who the school’s Privacy Officer is, and that the Privacy Officer understands their statutory responsibilities, including that they must actively encourage compliance with the information privacy principles. Information and training on privacy law is available directly on the Privacy Commission website; it is relevant and accessible, and includes examples of where schools and other agencies have been found in breach of legal requirements. Seeing what not to do can help you avoid being the next “case.”
Boards of Trustees and school staff are not usually lawyers, and even those who are lawyers cannot be expected to be fully conversant with all of the myriad legal issues facing schools. You are entitled to have a reasonable opportunity to consider an issue and seek advice before taking action or deciding how to proceed. There are few situations which require an immediate response, and those which do (such as a serious and imminent risk to health and safety or an emergency lock down) should be covered by an appropriate policy so that everyone is clear about what they need to do and can act swiftly.
We cannot help you with finding experienced staff, but the first step in dealing with legal issues is to recognise that there are a number of significant legal requirements, that you do need to comply, and that there is support and advice available.
Fi McMillan is a Senior Associate in our Employment Team. Based out of the Dunedin office, Fiona specialises in employment and education law. Fiona has been with the firm since 2007. Prior to becoming a lawyer Fiona worked as a primary school teacher, which puts her in a strong position to advise on legal issues affecting schools.
Fi’s career started in the education sector, including a Post Graduate Diploma in Child Advocacy, and teaching at primary schools in Otago and the United Kingdom, before moving into law.
Fi believes that experience in the workforce is a valuable asset for employment lawyers, to enable them to provide workable solutions to workplace issues. Her teaching experience means she can provide practical advice to education sector clients.
Fi loves working directly with clients and resolving legal issues. Where a client is in a dispute situation she prefers to start with the co-operative approach; exploring options for resolution of issues rather than launching straight into formal processes. However, she understands the need to stand up and fight, if necessary, and is always determined to obtain the best client outcome.
Fi is the legal advisor to the New Zealand Principals’ “Principals Advice and Support Scheme.” She is a past member of the Board of Trustees for Otago Girls’ High School, and the Board of Knox College and Salmond College.