In a decision cheered by teachers, a judge has said school governors can take into account a threatened strike by staff in deciding whether to take back an expelled pupil.

The High Court decision, in an application for judicial review by the father of a 15-year-old girl, bears on the row over whether schools can be obliged to take back pupils who have been permanently excluded.

Head teachers have complained that their attempts to get rid of violent or continually disruptive pupils are often overruled by independent local appeal panels.

Once that happens the school is obliged to comply. But in a number of instances teachers have responded by threatening to strike rather than teach the pupil involved.

In August, following union protests, the government issued new guidance saying that local education authority appeal panels should not normally reinstate a pupil who had been permanently excluded.

Unions urged to reconsider

In this case, Mr Justice Richards, sitting in London, did urge the teachers to reconsider their refusal to teach the girl in view of her improved behaviour and "excellent" progress.

He said their refusal may largely have been based on disputed allegations that the girl - who cannot be identified for legal reasons - had been in possession of a knife in a fracas at the school.

He questioned whether it was "rational and responsible" for the teachers and their unions - the NUT, NASUWT and ATL - to continue their ban on teaching her.

The judge described how the girl was involved in a major disturbance in and around the school in February which led the head teacher to expel her.

'No evidence of knife'

This was upheld by the school's governing body. A number of other pupils received written warnings.

But the local appeal panel said the girl should be reinstated after the Easter break. It found there was no evidence that she had been carrying a knife.

Faced with the possibility of industrial action, the head arranged for the girl to be taught by a supply teacher during the mornings and to attend a pupil support centre away from the school in the afternoons.

Richard McManus QC, for the girl's family, had argued that her education was suffering because the school governors were unlawfully refusing to reinstate her fully - which he said meant in a normal class environment.

Discretion

Rejecting the application, Mr Justice Richards said he did not think reinstatement necessarily entailed full reintegration into the classroom.

"The governing body has a discretion as to how it goes about the process of reinstatement so that there is no longer an exclusion of the pupil", he said.

He also rejected Mr McManus's claim that the governors had taken into account an "irrelevant consideration" by being influenced by the threat of industrial action.

Mr McManus had argued that to give way to such threats would "defeat the rule of law".

But the judge said: "Absent clear and binding authority, I would be very reluctant to hold that a governing body is precluded as a matter of law from taking into account a threat of industrial action by teachers in deciding on the appropriate course to adopt."

Unions delighted

The general secretary of the National Association of Schoolmasters Union of Women Teachers, Nigel de Gruchy, said he warmly welcomed the judge's decision.

"It restores some sanity to the system for maintaining good order in schools," he said.

John Bangs of the National Union of Teachers said: "It's a clear indication of the courts' awareness of the difficulties that teachers face."

In an earlier case, another judge refused to order a school to take back a boy expelled for violence, after teachers threatened to strike rather than teach him.

But on that occasion he said teacher unions appeared to be acting unlawfully by threatening to strike.