The case of Wallace v Secretary of State for Education [2017] EWHC 109 (Admin) concerned a “super head” banned from teaching after a spectacular fall from grace.
Background
Mr Wallace was the Principal of the Best Start Federation (‘BSF’). BSF had absorbed 5 failing primary schools and turned them around into successful learning environments. Much of this was down to Mr Wallace’s exceptional talents as an educator.
But all was not well. Mr Wallace was investigated and summarily dismissed for serious professional misconduct after an audit discovered that BSF had paid in excess of £1 million to an IT company that he had personal and professional ties to. He had given the company confidential information, failed to disclose his conflict of interest and deleted emails after a visit from the Anti-Fraud Division of the local authority in Hackney.
The case was referred to the teacher’s regulator, the National College of Teaching and Leadership (‘NCTL’) who investigated and referred the case to an independent disciplinary panel. As I’ve written about previously, the panel’s task was to hear the evidence, decide whether the allegations of misconduct were proven and to make a recommendation on whether a teaching ban (or ‘prohibition order’) should be imposed. The final decision on a ban lies with the SSfE.
The panel found a number of serious allegations proven but recommended that Mr Wallace should not be banned from teaching due to the strong public interest in allowing him to continue to teach. The SSfE disagreed and imposed a ban with a minimum term of 2 years before any review could take place.
The appeal
Mr Wallace argued on appeal that the SSfE:
- had breached his right to a fair trial under Article 6(1) of the European Convention on Human Rights because the same body that prosecuted him decided whether to prohibit him from teaching;
- was wrong on the merits and the Court should substitute its own decision in its place;
- failed to consider imposing a lesser sanction;
- failed to apply the test of proportionality properly; and
- failed to give adequate reasons for her decision.
The judgment
The Court rejected Mr Wallace’s appeal on grounds 1 and 2, but upheld it on grounds 3, 4 and 5. As a result, the Court lifted the ban on him teaching.
The judgment highlights several defects in the current system for the prohibition of teachers.
Firstly, while most regulatory bodies have a considerable range of sanctions to chose from, the NCTL doesn’t.
Where a teacher is found guilty of misconduct, there are only 2 options: a ban or a public finding of misconduct. In borderline cases, that choice is particularly important and the SSfE must consider applying the lesser sanction.
Publishing findings of this nature are highly likely to affect a teacher’s professional reputation and, to some extent, employment prospects. This should be regarded as a “considerable sanction” in itself. (§ 79)
In Mr Wallace’s case, the SSfE failed to give consideration to this lesser sanction.
Secondly, the NCTL’s advice on sanction is inadequate:
the Advice does not contain any proper explanation of the “proportionality principle”. Indeed, it rather misleadingly implies that the exercise merely involves weighing public interest conditions against those of the teacher, implying (a) a simple balancing exercise and (b) that there are no public interest considerations which may tell in favour of a person continuing to teach. That possibility is not addressed. (§ 86)
It noted that:
the public interest in retaining a person who is able to make a valuable contribution to a profession, can be a factor carrying substantial weight against prohibiting him or her from working in that profession (§ 84)
This important consideration is not reflected at all in the NCTL’s guidance document.
A more nuanced assessment is required. The Court endorsed the test laid out by the Supreme Court in Bank Mellat v Her Majesty’s Treasury (No. 2) [2014] AC 700 at §§ 20 and 74 to 75:
whether a less intrusive measure could have been used without unacceptably compromising the achievement of the relevant objective(s), and whether having regard to these matters and the severity of the consequences for the individual, a fair balance has been struck between the rights of the individual and the interests of the public. (§ 90)
It seems that unless the NCTL’s policy is amended to reflect the Court’s findings, there is a significant risk that decision-makers will get the balance wrong.
A fair trial?
The Court rejected Mr Wallace’s challenge to the fairness of the procedure.
…it is inappropriate to mount a challenge under Article 6(1) to the scheme operated by the Respondent by broad-brush arguments of the kind presented in the present case. This applies all the more to an appeal which can only be considered at one level, namely the High Court. Arguments of this nature require a proper analysis not only of the statutory framework, but also a full description of the process in fact operated by the Respondent and a careful analysis of relevant case law. (§ 60)
Such a challenge should identify the fixes required by any alleged flaws in the system, explain how the fixes cohere with the legal framework underpinning the process and how such fixes might affect other cases.
None of this was done.
In any event, the safeguards in Article 6(1) are satisfied by the right of appeal to the High Court, which is an integral part of the disciplinary framework (§ 61).
Even so, there were some potential flaws in the procedure.
the normal practice followed by the NCTL is that the senior official will be supplied solely with the report of the PCP. That official is not supplied with the written evidence, documents, or submissions before the PCP or with a transcript of the hearing conducted by the PCP. (§ 26)
As the SSfE does not review the evidence but bases her decision solely on the panel’s summary report, unfairness could arise where the SSfE disagrees with a recommendation by the panel on the basis that the panel’s factual findings were wrong.
Further litigation on this point may lie ahead.
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