Duty of care at the school gates

Many members are finding themselves with extra duties at the beginning and end of the school day. We look at the legal issues around pick-up and drop-off.

Schools owe a duty to provide adequate supervision at bus stops used by students, even those not immediately adjacent to school premises. Similarly, schools owe a duty to supervise the safe arrival at and departure from school grounds for students.

With the COVID-19 social distancing requirements, many schools have stipulated that parents must remain offsite, and that drop-offs and pick-ups be choreographed to minimise parental contact with other students, staff and parents. In practice, the burden of managing this, particularly in primary schools, falls to teachers and support staff, resulting in further workload increases through additional duties.

The requirement to identify and put in place arrangements to protect students and others from foreseeable risks lies with the school. However, the duty of care in the provision of supervision is a shared responsibility of both the employee and employer.

Reasonable care

The IEU is often asked what the practical consequences are for a teacher or member of support staff if a student suffers serious injury while under their supervision. The issue of providing reasonable supervision overlaps with several common law duties owed by employees to employers, the most notable being the duty to obey reasonable and lawful directions, and the duty to exercise reasonable care in carrying out their employment.

Generally, at law, an employee can be sued in negligence where there is said to be a failure to meet a duty to take reasonable care. However, there is also the principle that employers are vicariously liable, meaning they can also be held legally responsible for the acts or omissions of their employees that occur in the course of employment. In almost all cases, a claim would also be brought against the school.

Protection from liability

Many employers will be insured against liabilities arising from negligence. Where an insurance company covers a negligence claim brought against an employer, there is federal legislation that prevents the school from recouping money from the employee as long as the employee had not engaged in serious or willful misconduct.

IEU members in NSW have added protection in the form of the Employees Liability Act 1991. This Act positively requires an employer (whether insured or not) to indemnify their employees in respect of any liability incurred for negligence in the course of their employment, except in cases of serious and willful misconduct.

If you take reasonable care for the safety of students under your control and supervision, you can be confident you will be protected.

While much is dependent upon public health developments, IEU members should not be expected to bear the responsibility for additional COVID-19 gate supervision requirements indefinitely.

As Term 3 approaches, the union will be looking to ensure schools review the appropriateness of, or method of implementing, such arrangements. Our aim is to remove this additional workload demand on members.