There were some interesting comments in the Guardian this week on the increasing number of referrals of teachers to the Teaching Regulation Agency (TRA) and the backlog of cases waiting to be heard for misconduct, resulting in some teachers having to wait years for a hearing. 

The article entitled "All for an anonymous blog: are teachers being unfairly banned?" referred in part to a case recently heard by the TRA regarding an assistant headteacher joking with a student on the school's playing fields, involving him chasing and squirting her with water and touching her on the back. He was accused of failing to maintain professional boundaries. The TRA decided that while his behaviour had been “over-familiar, playful and inappropriate”, it did not consider there was any evidence of sexual intent and so declined to ban him from teaching. In addition, the article makes the point that when a case comes before a TRA panel, the teacher can be identified, even if it fails to make a prohibition order, and the case in question generated salacious and suggestive headlines based on what was claimed but was not ultimately proven. The net result was a teacher who, while not banned from the profession, was already lost to it by the time the TRA made its decision and in my view, even if he wanted to return, would not make the most attractive recruitment proposition due to the adverse publicity generated.  

Keeping children safe in education is something we all want, as well as it being a fundamental document that schools and academies need to comply with. It struck me that with increased criticism in recent years of education providers not responding quick enough or dealing with safeguarding concerns, it is not surprising that schools, academies and local authorities are acting on the side of caution and making referrals to the TRA and leaving the decision to them. This story is a reminder to school leaders that a referral is appropriate only if the alleged misconduct is so serious that it warrants a decision on whether the teacher should be prevented from teaching. After all, that is the only sanction the TRA has in its ammunition. There is no downgraded or alternative sanction. Employers have a statutory duty to consider referral of cases involving serious professional misconduct to TRA and the TRA will only make a prohibition order where there has been either i) unacceptable professional conduct; ii) conduct that may bring the profession into disrepute or iii) a conviction, at any time of a 'relevant offence'. Cases of less serious misconduct, and all cases of incompetence, should be dealt with locally by employers.  

Issues that escalate too quickly and result in inappropriate or excessive disciplinary sanctions can result in pesky, expensive, protracted and time consuming constructive or unfair dismissal claims, which detract management time away from the ultimate objective of delivering high-class education to our children and young people. For school and academy leaders wanting robust education-specific employment advice on such disciplinary matters, including guidance on when to make a referral to the TRA, please contact Katherine Sinclair at Anthony Collins solicitors.