Briefing

A fair hearing?

Posted by: Maria Strauss | Date posted : 24/11/2016

A recent judgment illustrates the importance of acting fairly when dealing with allegations of wrongdoing. In this instance, the proceedings under scrutiny were carried out by the National College of Teaching and Leadership (NCTL), in a case brought against two teachers at a Trojan Horse school.

The case

In the late 1990s, Park View Primary school in Birmingham was placed in special measures. By 2011, it had improved to such a degree that it became a national support school and was expected to help other schools that required improvement. In 2012, Nansen Primary School became a sponsored school, taking its place as an Academy within the Park View Educational Trust.

In 2013, Park View was named as a Trojan Horse school and, when inspected by Ofsted, it was downgraded from "Outstanding" to "Inadequate". The NCTL brought charges of unacceptable professional conduct against all members of the senior leadership teams of Park View and Nansen; it also brought charges against some more junior members of staff, including Mr Ahmed and Mr Anwar.

Both men taught at Park View; Mr Anwar was also a governor of Nansen and was involved in interviewing candidates for Deputy Head Teacher posts at that school.

The NCTL considered the cases against the senior leadership team together. It also dealt with Mr Ahmed's and Mr Anwar's cases together, but separately from those of the senior leadership team. The main allegation against all of them was essentially the same – that they had "agreed with others to the inclusion of an undue amount of religious influence in the education of the pupils at Park View School". Mr Anwar was also accused of failing to declare that he knew one of the candidates he interviewed for the Deputy Head posts (a Mr Faraz), and of rigging the process to ensure that Mr Faraz was appointed in order to further the school's overly religious agenda. The NCTL upheld the main allegation against both of them, finding that their actions had "tended to undermine tolerance and/or respect for the faith and beliefs of others". It also upheld the allegations against Mr Anwar concerning Mr Faraz's appointment.

Prohibition Orders were issued against both men. They appealed, arguing that the NCTL proceedings against them had been unfair.

First, their NCTL hearing had taken place before that of the senior leadership team. (Indeed, those proceedings are not expected to end until late December.) At the senior leadership team's hearing, the NCTL will need to determine whether there was an undue amount of religious influence in the schools, and whether there was an agreement between the teachers and governors to create that degree of religious influence. It is possible that the NCTL will find that there was no undue religious influence and no agreement, meaning that the Prohibition Orders against Messrs Ahmed and Anwar will have been issued on the basis of an agreement that never existed. Similarly, the NCTL found that Mr Anwar had appointed Mr Faraz to enable him to pursue an improper agenda at Nansen, but the NCTL has not yet determined whether Mr Faraz did in fact pursue an improper agenda.

Both teachers further argued that, given the connection between the two sets of proceedings, the NCTL should have disclosed material relating to the senior leadership team proceedings to them. They had asked the NCTL to provide copies of various documents, but the NCTL had refused, leaving them to conduct their own hearings without knowing what accusations were being levelled against their superiors or what was happening in the related proceedings.

The Court found in favour of Mr Ahmed and Mr Anwar.

Although the NCTL was not obliged to deal with all members of staff in the same set of proceedings, in terms of timing the judge had "considerable doubt as to the fairness of proceedings first against teachers such as [Mr Ahmed and Mr Anwar], in advance of…the 'main' hearing...I have equal doubt as to the fairness of proceedings against Mr Anwar separately from and before the proceedings against Mr Faraz."

However, the Court's conclusion was not based on the timing of the two sets of proceedings. Rather, it was based on the NCTL's failure to disclose relevant material to the two teachers. This was a sufficiently serious procedural defect to justify setting aside their Prohibition Orders.

Conclusion

An NCTL hearing may seem far removed from the business of running of a school, but the principles that led to the Prohibition Orders in this case being quashed can also apply to disciplinary matters:

• those under investigation must have access to the material they need to understand the case against them and defend themselves;
• if related cases cannot be run jointly, deal with the principal issues first.

If you require further information on anything covered in this briefing please contact Maria Strauss (maria.strauss@farrer.co.uk; 020 3375 7259) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Schools page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2016