Should a teacher face their regulator for alleged conduct such as:
- arranging a hook-up with consenting adults on Grindr who then turn out to be juvenile criminals who commit a violent robbery. He was then too traumatised and embarrassed to tell his line-manager the full truth of what had happened.
- allegations of over-familiarity with a niece. The uncorroborated claims were made to the regulator by the niece’s mother during the fall-out of a bitter inter-family dispute.
- disciplining their own child by using physical restraint and harsh words.
These are all allegations which our clients have faced recently and where we made robust representations to the Teaching Regulation Agency (TRA) stating that our clients do not have a case to answer. In each case we were successful and the teacher was not referred to a public hearing before a professional conduct panel.
None of these alleged behaviours happened in a school and none led to criminal charges. Indeed, the first teacher was viewed by the police as a victim of crime. In the latter two cases social services required the teachers to live separately from their children whilst being investigated and they were then reunited with them once no safeguarding risk was identified. And yet in all these cases the teachers still found themselves suspended and investigated by their employers, with two of them being dismissed from their employment and automatically referred to their regulator.
In each case the alleged conduct could not be “unacceptable professional conduct” because it took place within their private lives. So was it nevertheless the other flavour of misconduct; “conduct which could bring the profession into disrepute”? We argued that it would be disproportionate for the regulator to treat each of these cases as that.
For the moment at least, when a part of the State (such as the TRA) decides to prosecute, the Human Rights Act 2000 gives every one of us such things as a right to a fair trial (see Article 6 of the ECHR) but also a right to respect for our private and family lives, our home and our correspondence (Article 8). However, this right is qualified and where it is:
“in accordance with the law and necessary in a democratic society in the interests of
- national security,
- public safety
- the economic well-being of the country,
- the prevention of disorder or crime,
- the protection of health or morals, or
- the protection of the rights and freedoms of others”
a public authority can “interfere” and prosecute you.
But the ‘necessary’ requirement means that interference should only happen when doing so is proportionate. This concept is a key protection in public law and invokes the principle we established back in 2017 in the Wallace case; that regulatory action should only be taken by the TRA when it strikes a fair balance between the public interest in holding a regulatory hearing and the private interests of the teacher.
The law on this in a regulatory context was considered in some detail three years later in the case of the solicitor Ryan Beckwith. The High Court said:
“It is one thing to accept that any person who exercises a profession may need, for the purposes of the proper regulation of that profession in the public interest, to permit some scrutiny of his private affairs; to suggest that any or all aspects of that person’s private life must be subject to regulatory scrutiny is something of an entirely different order.”
Remarkably, on the facts that court found the Solicitors’ Disciplinary Tribunal had been wrong to conclude that alleged sexual misconduct with a junior colleague had placed Mr Beckwith in breach of the published principles governing solicitors’ behaviour.
The Teachers’ Standards are drafted broadly and Part 2 talks of maintaining “high standards of ethics and behaviour, within and outside school”. So in each case we submitted that the TRA should only refer to a panel where it is both:
- satisfied the alleged conduct in their private life breached those specific standards
- proportionate to hold a hearing,
In other words, the alleged conduct is such that the public interest outweighs the private interests and makes it necessary.
So do the TRA decision makers take on board the law on Article 8 and proportionality when making their decisions? Well if they do we have never seen it written down! Instead they have an odd formula they cut and paste from their guidance into their letters:
“the TRA will only consider allegations of the most serious cases of misconduct, in order to make a decision about whether a teacher should be prohibited from teaching work. Other matters, including all cases of incompetence, should be dealt with locally by employers”.
In each of these cases they then found “insufficient evidence of serious misconduct”. No mention of human rights at all. But before Nigel Farage is elected and removes them from us all, we intend to keep banging our Article 8 drum in hope that one day the magic words “private life” and “proportionality” will be repeated back to us.
Colin Henderson