Banning people from teaching: why the Secretary of State doesn't always get it right

The NCTL acts on referrals from various sources, including schools. If, following preliminary investigations, the matter gets as far as a hearing, a panel of the NCTL considers whether the teacher:

1. is guilty of unacceptable professional conduct
2. is guilty of conduct that may bring the teaching profession into disrepute; and/or
3. has been convicted of a "relevant offence". (Offences are listed: broadly speaking, they are offences that are relevant to the person's fitness to be a teacher.)

If the NCTL concludes that the teacher's conduct falls into one of these categories, it must then decide whether or not to recommend that the Secretary of State issues a Prohibition Order against them. In practice, the Secretary of State's decision is made by another person at the NCTL. If that person makes a Prohibition Order, they may indicate that the Order can be reviewed after a certain length of time.

In three recent cases, teachers appealed to the Court against their Prohibition Orders. In all three cases, the Secretary of State (via her NCTL representative) had made the Orders against the recommendations of the NCTL panel. The Court only upheld the Prohibition Order in one of the cases. What were the issues, and why did the Court reach the conclusions it did?

The cases - a summary

Kingston – Mr Kingston admitted looking at bestiality images online, but said that it was his partner who had searched for them. The NCTL panel held that this amounted to serious unacceptable misconduct that could bring the teaching profession into disrepute, and acknowledged that public confidence in the profession could be weakened if it was not taken seriously. However, it concluded that prohibition was inappropriate: it was a single incident that took place in Mr Kingston's home, he had shown remorse for it and there was no question that he posed a threat to pupils or that his teaching ability was affected.

The Secretary of State disagreed and imposed a ban, with the possibility of review after two years.

The Court upheld the Secretary of State's decision.

Wallace – Mr Wallace was a man with a track record for improving failing schools and was the "superhead" of a federation of five schools. He had a relationship with someone referred to as "TZ": at times this was of a romantic nature, at other times platonic. Mr Wallace had also been the secretary of TZ's company. There were several allegations against Mr Wallace involving TZ, including that he had helped TZ's company to secure contracts with schools with which Mr Wallace was involved, and that he had failed to tell the schools about his conflict of interests when it came to TZ. Mr Wallace admitted the substance of the allegations but maintained that he had not acted with deliberate dishonesty. The NCTL panel found that his conduct was unacceptable and might bring the teaching profession into disrepute, but accepted that he had been working in a highly-pressured, fast-paced environment, and that his actions were motivated by a desire to improve educational outcomes, rather than dishonesty. The panel reached the conclusion that the Secretary of State should not make a Prohibition Order, on the grounds that (1) given Mr Wallace's exceptional skills, it was in the public interest for him to continue to work in the profession (since losing his "superhead" job, he had gone on to help another failing school), (2) publishing the panel's findings would be a sufficient sanction, and (3) other mitigating factors were present, eg he had shown great insight into his misconduct.

The Secretary of State nevertheless made a Prohibition Order, reviewable after two years.

The Court set aside the Prohibition Order and ruled that publication of the panel's findings was a sufficient sanction.

McTier – Mr McTier was a renowned bass player. In 2014, he pleaded guilty to three sexual offences, committed against music students, in 1985, 1988 and 1994. Only the first of these offences involved a (17-year-old) school pupil. After his conviction, the NCTL considered whether, given that he had been convicted of a "relevant offence", he should be banned from teaching. Although the offence was relevant to Mr McTier's suitability to teach, the NCTL panel took the view that a Prohibition Order would not be appropriate, since the offences took place a long time ago and the judge in his criminal case had said that he no longer posed a risk.

The Secretary of State took a different view and issued a Prohibition Order, with the possibility of review after five years.

The Court set aside the Prohibition Order and remitted the case for reconsideration.

Reasons and proportionality

The objections in all three cases were one or both of the following:

• the reasons for the Secretary of State's decision were inadequate (or she had failed to explain her reasoning adequately); and
• the imposition of a Prohibition Order was a disproportionate and inappropriate sanction.

Deciding whether or not to recommend a Prohibition Order involves something of a balancing exercise. Once the NCTL has found that the allegations against a teacher are proven (and fall within one of the three broad categories listed earlier), it must then weigh the severity of the misconduct against any factors militating against making a Prohibition Order. The NCTL has published its own advice on how to do this: "Teacher misconduct: The prohibition of teachers", subtitled "Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession" (the Advice).

The Secretary of State must go through a similar process when deciding whether to issue a Prohibition Order – she is not obliged to accept the NCTL's recommendations.

In Kingston, where the Court upheld the ban, the Secretary of State had stated briefly that she disagreed with the NCTL's conclusions on the basis that, in her view, the panel had given too much weight to certain mitigating factors and not enough to (1) the effect that it could have on public confidence if Mr Kingston's conduct was not treated with the utmost seriousness, and (2) the public interest in upholding standards of conduct in the teaching profession. Mr Kingston contended that this was not enough – that the Secretary of State should, for example, have explained why she weighed matters differently. The Court disagreed: the reasons were clear enough, and the Secretary of State did not need to go into such detail.

On the question of proportionality, Kingston pointed out that he only ticked one or two of the items on the list (in the Advice) of factors that will indicate that a Prohibition Order is appropriate. The Court clearly sympathised with his position, but said that the list was not exhaustive and that it could not be said that the Secretary of State was wrong to disagree with the NCTL panel on the weight that should be attached to various factors in his case.

In Wallace, where the ban was ultimately overturned by the Court, reasoning and proportionality had been considered together. In her letter, the Secretary of State merely said that the NCTL panel had given insufficient consideration to the damage to public confidence in the profession that would follow, if Mr Wallace's case were not treated sufficiently seriously. It was clear that the Secretary of State agreed with the NCTL's assessment of Mr Wallace's abilities: having declared her intention to make a Prohibition Order, she immediately went on to say that the profession should not be deprived of a teacher with such exceptional qualities, and that he should be permitted to apply to have the Order reviewed after two years. The Court inferred from this that the Secretary of State had not even considered the option of publishing the NCTL's findings, as a lesser sanction. This failure meant that her reasons for deciding to make a Prohibition Order were inadequate, and that she had not properly considered the issue of proportionality.

In the McTier case, where the Court subsequently directed that the ban be reconsidered, the Secretary of State had felt that the seriousness of the convictions and the need to uphold public confidence in the teaching profession meant that Mr McTier should not be allowed to teach for as long as he was on the sex offenders register. The Court criticised her reasoning on a number of grounds. For instance, she said she had taken account of the comments of the judge (in Mr McTier's criminal case) that he was no longer a risk, but did not say what she made of those comments – did she disagree, or agree with the assessment but consider it insignificant? Similarly, she had not said anything about how the length of time since Mr McTier's last offence had affected her conclusion. Moreover, since Mr McTier was no longer teaching in schools, the Prohibition Order would have little practical effect, and would (according to the Secretary of State's own legal analysis) still allow him to give private tuition to young women in his own home.

Because of these deficiencies in the Secretary of State's reasoning, the Prohibition Order was set aside.

Themes

The three cases are fairly different but it is possible to draw out some underlying principles. If the Secretary of State has failed to consider relevant matters – or has failed to supply enough detail to provide a basic understanding of how those matters affected her decision – then a Prohibition Order may be overturned. However, if she has considered all relevant points, then she does not need to provide much by way of explanation for her reasons to be deemed sufficient.

Proportionality is always a judgement call. In McTier, the Court did not directly criticise the Secretary of State's decision on proportionality grounds, but commented that a decision to make a Prohibition Order can be set aside if it is "disproportionately harsh".

Independent schools and the NCTL

Cases like these offer pointers on good (and not so good) practice in reaching disciplinary decisions, but they also provide an opportunity for schools to think about their duty to consider referring a case to the NCTL in certain circumstances.

If you dismiss a teacher for misconduct (or would have dismissed them had they not resigned first), you must consider making a referral to the NCTL. The NCTL's Advice referred to in this article is aimed primarily at helping members of NCTL panels to decide whether or not to recommend making a Prohibition Order, but serves a secondary function of helping schools decide whether or not to make a referral. You can find the Advice here.

If you require further information on anything covered in this briefing please contact Rachel Holmes ([email protected]), Alica Cave ([email protected]) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Schools page of 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, April 2017