A 2021 report published by the Ministry of Education found that compared to other countries, New Zealand had a far higher proportion of students reporting being frequently bullied. 36% of Year 5 students, and 38% of Year 9 students, reported that they were being bullied on a monthly basis.
So, from a legal perspective, what is bullying? What are the ‘symptoms of a problem’ that schools should look out for? And what are a school’s legal obligations if it receives a report of bullying, or suspects there is a problem?
What is bullying, and what is not?
Bullying is repeated and unreasonable behaviour directed towards a person or a group of people that can lead to physical or psychological harm.
One-off incidents of tactlessness or insensitivity do not constitute bullying. Neither do an employer’s actions in setting reasonable expectations or engaging in genuine performance management. Repeated behaviour is persistent and can involve a range of actions over time, while ‘unreasonable’ behaviour can include victimising, humiliating, intimidating, or threatening a person. A single incident of unreasonable behaviour is generally not considered bullying, but could escalate and so should not be ignored.
Symptoms of a problem: What to watch for
There are a number of indicators of a bullying problem which schools should be alert for.
Within the workplace, these include staff complaints, absenteeism, grievances, issues being raised in exit interviews, high rates of resignations or turnover, and absenteeism.
Students being bullied might exhibit anxiety or negativity about school, fear of commuting to school (including asking to be driven or changing routes), a decline in schoolwork results, coming home hungry or with belongings damaged or missing, having bruises, cuts and scratches that they can’t explain, becoming submissive or withdrawn with other children, or exhibiting anxiety or upset related to computer or mobile phone use.
In isolation, these behaviours may relate to other issues, but cumulatively they are a good indicator of a bullying problem.
If a school (as an employer) fails to deal with issues in the workplace, this could lead to legal liability, including prosecution under the Health and Safety at Work Act, or more commonly, a personal grievance claim brought by affected employees.
A school’s core legal obligations as an employer are to manage and prevent the risks that bullying poses to the health and safety of staff, maintain employment relationships and treat staff in good faith, by virtue of the Health and Safety at Work Act 2015 and Employment Relations Act 2000.
In term of legal obligations to students, the Education and Training Act 2020 sets ‘primary objectives’ for school boards. Relevantly, boards must ensure that the school is a physically and emotionally safe place for all students and staff; and take all reasonable steps to eliminate racism, stigma, bullying and any other forms of discrimination within the school.
Thank you to Special Counsel Madeleine Hawkesby Solicitor Hamish Rossie for preparing this article. For any questions on this subject, please contact a member of our Education Law Team.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.