It is commonly understood that you can only be struck off if you do something seriously bad. But that is not necessarily true. Recently a teacher’s behaviour was found to be within the range of acceptable professional conduct, but his career is still over.
Last week the Teaching Regulation Agency published a decision which illustrates two trends at the regulator. One trend is the increasing frequency of the Secretary of State prohibiting teachers, even though the regulatory panel who heard the evidence made a recommendation that they should not be prohibited. Schools Week has written about this, but the publication of their article highlighting the issue has done nothing to temper the muscle-flexing of the civil servants who purport to know where the public interest lies better than the panel who actually heard the case and understand the full context of the events in question.
The other trend is the increasing use of the alternative route to guilt; disrepute; which can in rare cases create the obvious injustice of a teacher whose behavior was not outside the broad range of acceptable conduct being prohibited from teaching.
This is a bit complex so please bear with me as I attempt to capture the various strands.
A long time ago, there was a body called the General Teaching Council for England. They regulated registered teachers under three headings: unacceptable professional conduct, serious professional incompetence and conviction of a relevant offence. There was a perception, more imagined than real, that this left the regulator toothless to deal with teachers who behaved badly away from the profession.
When Michael Gove had the idea to both broaden and simplify the regulation of teachers, he abolished the General Teaching Council for England and took all powers to regulate the profession back within the walls of the Department for Education. To make clear that teachers’ private lives were subject to regulation, the new regulator defined its ambit as being unacceptable professional conduct, conduct that may bring the profession into disrepute and conviction of a relevant offence.
In the early years of the new regulatory regime it was generally understood that unacceptable professional conduct related to behaviours within a professional context, whereas conduct that may bring the profession into disrepute related to behaviours outside any professional context.
The watch-word for unacceptable professional conduct is “serious”. The guidance makes clear that only serious misconduct will qualify for a finding of unacceptable professional conduct. The guidance also makes clear that only serious behaviour outside the professional context will be regarded as behaviour that may bring the profession into disrepute.
Unfortunately over the last decade, those who prosecute at the Teaching Regulation Agency have developed a habit of charging each and every example of misconduct as being both unacceptable professional conduct and conduct that may bring the profession into disrepute. And panels considering cases have fallen into the habit of finding teachers guilty under both tests. Thus the teacher who steals money from the school budget is obviously guilty of unacceptable professional conduct, but he’s also deemed guilty of conduct that may bring the profession into disrepute.
From time to time, cases have arisen where panels have found somebody guilty of only one limb. That is becoming an increasingly frequent occurrence which brings me back to last week’s case.
The teacher in question had the great misfortune to have a partner who was convicted of some child sexual offences and sent to prison. The teacher did not disclose to his school that his partner had been convicted. Whether he was obliged to by law is a matter for some debate, but the panel considering the case concluded that he should have made the disclosures. However, they concluded that his decision to not disclose, although wrong, was not serious enough to amount to unacceptable professional conduct. He was found not guilty of that charge.
However, the panel went on to say that his behaviour would concern the public and he was therefore guilty of conduct that may bring the profession into disrepute. Thus a man whose behaviours at work were found to be within the broad range of what is acceptable professional conduct, was nonetheless found guilty by his regulator and was at risk of prohibition.
The panel recommended no prohibition, but on this occasion Stuart Blomfield, the TRA official acting on behalf of the Secretary of State, disagreed with the panel’s recommendation and has prohibited the unfortunate teacher. He has lost his career for behaving in a way that the regulator has deemed, professional speaking, to be within acceptable limits.
The teacher in question has a right of appeal to the High Court. Unfortunately, our own unsuccessful judicial review on this point will have muddied the waters for them.
To understand why this outcome was available you have to appreciate that the guidance, which says that only serious behaviour outside the teaching profession may amount to conduct that may bring with profession into disrepute, is being read to mean that less serious behaviour within the teaching profession can amount to behaviour that may bring the profession into disrepute. Having been at this particular coal face since 2005, my own view is that this was not the original intention. But the regulator, like almost all bureaucratic and hierarchical organisations, seems to be insatiable in its appetite for growth.
Leaving aside the conviction of a relevant offence route, there are four flavours of guilt for teachers’ conduct, two within a professional context and two outside it:
1 Behaviour within the profession may result in a finding that:
1.1 you are guilty of unacceptable professional conduct;
and it can also result in a finding that:
1.2 you are guilty of behaviour that may bring the teaching profession into disrepute.
2 Behaviour outside of the profession may result in a finding that:
2.1 you are guilty of unacceptable professional conduct (the guidance makes that clear)
and (somewhat more logically) can result in a finding that:
2.2 you are guilty of conduct that may bring the teaching profession into disrepute.
The guidance makes explicit that three of those findings require that the behaviour must amount to serious misconduct, but it also seems there is a route left open for a finding of guilt for non-serious misconduct within the profession which may bring the profession into disrepute (1.2 above alone).
I hope it is of concern to the profession that professional failings which have explicitly been found by the panel who heard the evidence to be not serious nevertheless led to the ending of this young teacher’s nascent career.
Andrew Faux, Barrister