When is “misconduct” a sanction?


In the context of teaching regulation, a finding of misconduct may in itself be sanction enough


The stigma of a published finding against a teacher of unacceptable professional conduct or conduct which may bring the profession into disrepute (“misconduct”) is a sanction, and can be sufficient such that nothing further is required. That was the conclusion of the High Court in Greg Wallace v Secretary of State for Education [2017] EWHC 109 (Admin).

Mr Wallace was a highly-regarded “superhead” celebrated for turning round difficult schools. The allegations related to contracts given effectively by Mr Wallace to an IT company. Mr Wallace was in a sexual relationship with one of the directors of the company, and had other links with it, none of which he declared. He also admitted passing on confidential information about other bidders to his lover, and deleting (potentially incriminating) emails. However none of the dishonesty charges relating to his admitted misconduct were found proved by the panel. The panel also heard a large amount of evidence of his outstanding contribution to education.

By the time of the hearing the panel found he had full insight. The panel also found that in his misconduct he was motivated only by a desire to improve education outcomes. It recommended that no prohibition order should be imposed. The Secretary of State disagreed. She rejected the recommendation and imposed a prohibition order with the possibility of a review after two years.

Mr Wallace appealed, and the prohibition order was overturned. At paragraph 77 Holgate J noted that

where misconduct falling within section 141B(1) is established, there are only two sanctions available to the [Secretary of State]. She may make a permanent prohibition order … [a]lternatively, she may refuse to make such an order, but in that event she must publish her decision … the legislative scheme does not provide for any other sanction between these two alternatives.”

The case was a relatively rare one in that it combined a finding by the panel that the wrongdoing was only borderline for a prohibition order anyway, with substantial evidence of Mr Wallace’s outstanding abilities as an educator. It was therefore possible for the panel to find that the public interest in retaining him in the profession could tip the balance against the need to declare and uphold standards by banning him. Nevertheless it opens up a line of reasoning for defence advocates in NCTL proceedings which may be attractive to panels otherwise required to prohibit the teacher from any teaching work.

What is really striking about the case is that the Judge should have referred to the publication of findings made at the “facts” stage (which is the case of the NCTL scheme includes the finding as to whether it amounts to misconduct) as a sanction at all.

Comment

At first sight it may seem to have little relevance to other regulators. The teachers’ scheme is unique in its strike-off or nothing approach. However practitioners in nursing cases, for example, will be used to hearing what has become something of a cliché from the case of Grant– that a finding of misconduct, but no impairment “amounts to a complete acquittal”. Wallace may help support an argument in those cases that a public censure and finding of misconduct by your regulator is not a matter to be taken lightly, and should be put in the balance against taking more severe action.


Ben Rich