Teacher misconduct – duty to report?
Revised guidance from the Department for Education may help schools with their reporting obligations.
One of a head teacher’s worse fears has to be receiving an allegation of serious misconduct by one of their teachers. Clearly a host of issues arise – child protection, managing parent and pupil concern and dealing with adverse publicity to name some of the most obvious. Employment law also has its role to play. Head teachers and potentially Governors may need to suspend the teacher in question, consider whether live-in teachers should remain on site during the investigation and conduct a fair and appropriate disciplinary process. If the disciplinary process ends in dismissal (or would have done if the teacher had not resigned before the process concluded), schools may be tempted to turn their primary focus to other matters. However, first they need to consider whether they have to refer the allegation of teacher misconduct to the National College for Teaching & Leadership (“NCTL”).
In January 2014, the Department for Education issued revised guidance on the factors which are to be considered by a professional conduct hearing panel when deciding whether to recommend that the teacher should be prohibited by the Secretary of State from carrying out any further teaching work. This is the same guidance that schools will need to consider when deciding whether or not to report to the NCTL.
Points to bear in mind:
- The regulatory system applies to anyone undertaking teaching work in any school.
- The NCTL should only be involved in the most serious cases of misconduct. Other matters, such as incompetence, should be dealt with locally.
- Where a school is in any doubt as to whether to refer to NCTL, they should refer.
- Referrals must be made promptly.
The issues which should be referred:
Unacceptable professional conduct and conduct that may bring the profession into disrepute
This can include conduct outside of education but only if it affects the way the person fulfils their teaching role or it may lead to pupils being exposed to or influenced in a harmful way. The new guidance clarifies that if a teacher accepts a caution for any of the criminal offences listed below or displays behaviours associated with those offences they are likely to have committed unacceptable professional conduct and brought the profession into disrepute even if they are not convicted of an offence.
The uniquely influential role that teachers play in pupils’ lives is a significant factor as is the fact that pupils must be able to view their teachers as role models.
Conviction, at any time, of a relevant criminal offence
This applies to British convictions and overseas conviction where the offence would also have been offence in England and Wales.
Any conviction for which the teacher was imprisoned and any of the following are likely to be relevant offences:
- Fraud/serious dishonesty;
- Possession of class A drugs;
- Supply of any illegal substances;
- Sexual activity;
- Arson/major criminal damage;
- Serious driving offences especially those involving alcohol or drugs;
- Other serious offences involving alcohol or gambling;
- Possession of firearms, knives or other weapons;
- Activity relating to any indecent photo or image of a child (the new guidance confirms that this includes activity whether or not it would be considered indecent under criminal sentencing guidelines).
Misconduct does not need to involve a criminal offence. For example, promoting extreme political or religions views should be viewed very seriously given the potential influence on pupils and a possible threat to the public interest. The potential effect is the key. The High Court made it clear (in the well publicized case of the Seventh Day Adventist who told pupils that homosexuality was a life choice, disgusting and a sin and worship on Sundays was basically worshipping the devil) that pupils do not actually have to be offended or suffer harm.
Other examples include:
- Serious departure from the personal and professional conduct sections of the Teachers’ Standards;
- Abuse of trust;
- Sustained or serious bullying or deliberately undermining behaviour;
- Any sexual misconduct – whether of a sexual nature or sexually motivated.
Anyone may report an allegation to the NCTL. If the allegations refer to conduct outside of education and are, for example, reported by a member of the public, a school could find itself first learning about the issue when they receive notice of an interim prohibition order. The school obviously cannot allow the teacher to work and in such circumstances may have very little time to prepare for addressing the parental/pupil concerns or the adverse publicity. It is clearly sensible to have an agreed plan of action in place to deal with events should they arise.
If there are safeguarding concerns raised by the allegations of teacher misconduct a separate referral to the Disclosure and Barring Service may be necessary.
This article also appears in the March 2014 edition of The Independent Schools Magazine.