Teacher misconduct: The prohibition of teachers
In June 2013 the Department for Education announced an intention to revise advice for Teacher Misconduct.
The intention was to clarify the Department’s expectation that any sexual misconduct and any criminal conviction or caution which involved the indecent images of children would be likely to lead to a prohibition. The Department conducted an eight week consultation at the end of last summer in which they invited respondents to offer their views on the proposed changes and the content of the prohibition advice more generally.
The new advice, updated on 17th January 2014, is available by clicking here.
What is a Prohibition Order?
A prohibition order means that the individual concerned is not allowed to undertake unsupervised teaching work in schools, or other set-ups defined under the regulations. Once an individual is prohibited, their details will appear on a Prohibited List, which is administered by the National College for Teaching & Leadership (NCTL) and can be accessed by current and future employers, free of charge.
What are the grounds for making a prohibition?
The Department of Education’s advice states that Prohibition Orders are likely to be appropriate where the behaviour of the individual concerned is wholly incompatible with being a teacher. The primary purpose is the protection of pupils and the maintenance of public confidence in the profession.
The teacher prohibition regime comprises sections 141A to 141E of the Education Act 2002 under Schedule 11 of the Act. These were inserted under Section 8 of the Education Act 2011. In addition the Teachers’ Disciplinary (England) Regulations 2012 apply. In short these work to provide that the Secretary of State may, following an investigation, prohibit a teacher from carrying out teaching work (see section 141B EA 2002).
A professional conduct panel will consider the evidence before it and must answer three questions in deciding whether to impose a prohibition order. These are as follows:-
(i) Have the facts of the case been proven?
The panel must decide, on the balance of probabilities, that the facts of the case have been proven, i.e the panel believes that the occurrence of the event was more likely than not. Where there is evidence of a criminal conviction then the panel will not re-examine the facts of the case and conviction will stand as conclusive proof on the relevant facts. A Police caution will also carry considerable weight, but will not be conclusive. Only once the panel is satisfied about the facts of the case should they continue to consider the next question.
(ii) Has there been a) unacceptable professional conduct; b) conduct that may bring the profession into disrepute; or c) a conviction, at any time, of a relevant offence?
Detailed considerations of the three categories is given in the prohibition advice at pages 6-9.
(iii) Is a prohibition order appropriate?
If the panel finds any of the matters at point (ii) are applicable, then they must make a judgement upon whether to recommend the imposition of a prohibition order by the Secretary of State. Here the panel must consider what is in the public interest, whilst also weighing up whether an order would be appropriate and proportionate in the circumstances.
The panel should consider any mitigating factors, for example whether the teacher was acting under duress, that their actions were not deliberate or that they have a previously good history. Each case is to be judged on its own merits.
Having considered the above factors, a panel will then make a recommendation to the Secretary of State as to whether or not a prohibition should be made. Once a recommendation is received by the NCTL they will decide, within two working days, whether or not to impose the order. The teacher will be notified in writing before this is made public.
Whilst a prohibition order applies for life, it is possible that an order can be reviewed after a period of time. It should be noted that a review is not an appeal; thus the initial evidence will not be reconsidered. A teacher can appeal against a prohibition order within 28 days of the notice being served upon them. This must be done in compliance with Part 52 of the Civil Procedure Rules. Finally, it should be noted that interim prohibition orders may also be applied and these prevent the individual from teaching until their case has been fully considered and concluded.
The New Advice
In essence the updated advice clarifies the Department of Education’s expectation that sexual misconduct and criminal convictions, or cautions, which involve indecent images of children will likely lead to prohibition, save in the most exceptional of cases.
In particular, guidance is given on the consideration of cautions and convictions and these are explicitly set out in the advice at pages 6-8. Furthermore, sexual misconduct is carefully defined. Finally, it is now clear that any behaviour associated with an offence listed at page 8 of the advice, but which did not itself result in a conviction, will still be relevant for the purposes of assessing professional conduct and whether the teacher has brought the profession into disrepute.
If you would like any further information, please get in touch:
E: 020 7227 7040
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.