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As a teacher, you are under constant pressure to ensure that the children in your care meet expectations, exhibit appropriate behaviour and remain physically and emotionally safe. That is a great deal of responsibility for one person to carry, though of course you should have the support of your Head Teacher and Governing body.

As well as the everyday professional demands of your role, you may often be alone with individual children, or have to deal with exceptionally difficult behaviour, or be placed in a situation where you do not feel comfortable. In those circumstances, you are vulnerable to allegations being made against you, or indeed to making a bad or inappropriate decision. Minor incidents and issues relating to competence may be dealt with internally (within the school) as professional discipline matters.

More serious matters of misconduct ‘must’ be referred by your employer to the regulator, the National College for Teaching and Leadership (NCTL), who will determine whether you should be permitted to continue to teach or recommended to the Secretary of State to be prohibited. If the matter involves a safeguarding issue, consideration ‘must’ also be given as to whether to make a referral to the Disclosure and Barring Service (DBS).

If you are facing a referral to the NCTL, it is important to know what will happen (various stages) and precisely what your options are.

Specialist legal advice is imperative and, as each case is different, you will not know what the most likely outcome of your case is until you have sought that advice. At Bankside Law, we have a wealth of experience in dealing with NCTL cases which allow us to guide you through the often overwhelming experience and secure the most appropriate outcome.

Below is a summary of the process that an NCTL referral will follow and what the possible outcomes will be:

Upon receipt of a referral, the NCTL will commence an investigation. The teacher is informed of the complaint and invited to serve their observations by way of response (often within 28 days).

In some cases, where the Determination panel consider there is an immediate risk of harm to pupils, the NCTL can apply for an interim prohibition order. The interim order will prohibit the teacher from teaching whilst the NCTL investigate and the matter reaches conclusion.

A Determination Panel, made up of senior NCTL staff, will then consider all available facts and decide whether or not the matter should be referred to the Professional Conduct Panel for a full hearing (or meeting – see below).

We at Bankside Law, try to challenge the referral at an early stage and persuade the Determination Panel that the case ought not to be referred to a Professional Conduct Panel on the basis that:

1. The facts are incapable of proof; 2. The facts, even if proved, do not amount to unacceptable professional conduct; 3. The facts, even if proved, do not bring the profession into disrepute; 4. The misconduct, even if proved, would not warrant a prohibition order.

However should representations fail and the matter be referred to a Professional Conduct Panel, arrangements will then be made to schedule a forthcoming hearing or meeting in due course. A hearing consists of the parties being present when evidence is adduced much like a tribunal/court hearing. This is open to the public. An alternative is a private meeting (where the panel determine the case on the papers, without the parties’ attendance). The latter is commonly used when allegations are not contested. The Panel’s findings however will be made public, in both scenarios.

It is also important to note that at least 7 days before the hearing, the allegations together with the teachers details are published on the NCTL website.

So, what must a professional conduct panel decide?

The panel will examine all of the adduced evidence from both sides which may also include points of mitigation, and then ask itself the following main questions:

1. Have the facts of the case been proved?

This is decided on the “balance of probabilities” – Effectively, is it more likely than not to have occurred?

If you have been convicted of a criminal offence relating to the matter, the panel will answer ‘yes’ to this question without examining it any further. If you have been given a Police caution relating to the matter, the panel can give weight to the fact that you have admitted guilt for that offence.

2 (i).  Has “unacceptable professional conduct” taken place?

This is loosely defined as serious conduct that falls far short of that which is to be expected of a teacher. It is accepted to mean whether the conduct would be considered deplorable by fellow professionals.

This can relate to both conduct within and outside the educational setting.

2(ii).  Does it amount to “conduct that may bring the profession into disrepute”?   Is the reputation of the teaching profession undermined by reason of the conduct? In essence, the Panel will consider whether the conduct is incompatible with the expectations placed upon teachers. Each case will be determined on its own circumstances. What would be classed as bringing the profession into disrepute in one case will not necessarily equate to another (particularly in relation to matters outside of the school setting). 

2(iii) Has there been a “conviction, at any time, of a relevant offence?”

If this applies, the Panel will consider the nature and seriousness of the offence which gave rise to the conviction. Relevant offences include dishonesty, offences against the person, drugs, alcohol, weapons, gambling, or child pornography. This is not a definitive list but provided to demonstrate those offences which are viewed more seriously.  Some minor offences that do not directly impact upon your role as a teacher may not be viewed as relevant.

3. Is it appropriate to make a prohibition order?

Having determined that the facts of the case have been found proved and answered ‘yes’ to 2(i), 2(ii) or 2(iii) above, it must then go on to decide whether or not to make a recommendation to the Secretary of State to impose a Prohibition Order. The aim of such an order is to protect pupils and maintain the general public reputation of the teaching profession. The Panel must be sure that a Prohibition Order would be:

(a) In the public interest, and; (b)  that it would be proportionate and just.

Orders are not meant purely to punish (although it is recognised that they have a punitive effect). The panel will consider any mitigating circumstances but also balance the need to protect the public and maintain the reputation of the profession.

 Mitigation

During deliberation as to whether a recommendation should be made for a Prohibition Order, there will be an opportunity to present mitigation if this has not been presented previously. This is obviously very important and could be instrumental in persuading the Panel away from such a recommendation.

Specific criteria which the panel will look at, includes:

• You did not act deliberately; • You have a previously good record of conduct; • You acknowledge your wrongdoing and have taken steps to correct/remedy the conduct so as to satisfy the panel that the conduct will not be repeated. This is generally referred to as ‘reflective insight’.

Sanctions

The only available sanction available is a Prohibition Order and it is the Secretary of State, who can only impose this. No other sanction is available, so it is very much all or nothing. Some other regulators have sanctions such as suspension or conditions, but this does not apply to the teaching profession.

If a recommendation is made for a Prohibition Order, the NCTL can also stipulate whether to allow a Review at a later stage, for example after 2 or 3 years.  This will depend very much on the facts and circumstances of the case. It would be unlikely however if the substance of the case related to matters of violence, discrimination/hatred, fraud, sexual misconduct or serious criminal damage.

The decision to make a Prohibition Order is made within two working days. Notice of that decision is provided to the teacher, before it is made public.

If you do not agree with the panel’s recommendation concerning the imposition of a Prohibition Order, there remains the right to appeal within 28 days to the High Court. The latter though requires significant grounds and is expensive.