Disciplinaries: Dealing with allegations against teachers

This article discusses issues that schools should be aware of when dealing with allegations of misconduct within the context of a disciplinary process. 

Dealing with any misconduct issue, particularly one that could lead to dismissal, should always be approached carefully. The impact of any dismissal of a teacher is likely to be very serious and potentially have serious implications for their future in the profession. This does not mean potential disciplinary matters should be ignored; just that it is important that appropriate procedures are followed and decisions are justified.

In these scenarios, schools should always refer to the Acas Code of Practice on disciplinary and grievance procedures (the Acas Code) and the school’s own disciplinary policy.

If a teacher is the subject of a safeguarding allegation, schools should refer to Keeping Children Safe in Education (KCSIE), which sets out specific guidelines for staff to follow when handling safeguarding issues.

Suspension

The question of whether suspension is appropriate often comes up when dealing with an allegation of misconduct. A school should not make this decision hastily or by default. A preliminary investigation should be undertaken to establish whether there is ’reasonable and proper cause’ to suspend. A full article on suspension can be found here , and a webinar on the topic is being delivered on 20 June 2024, sign up here.

Section 141F of the Education Act 2002 introduced reporting restrictions that prevent the publication of any material that may lead to the identification of a teacher who has been accused by or on behalf of a pupil at the same school. Confidentiality in these situations is paramount, particularly with social media in mind.

If a decision to suspend is made, regularly review the suspension, as this should be lifted if the circumstances allow at the earliest opportunity.  

Investigation

Once the decision is made whether to suspend or not, the next step is to undertake an investigation into the allegation(s). Consider carefully who to appoint as an investigator. This should preferably be someone who has been trained on conducting disciplinary investigations and, practically, a person who has sufficient time to undertake the investigation.

KCSIE provides guidance that “in straightforward cases, the investigation should normally be undertaken by a senior member of the school’s or college’s staff.” Depending on timing, resources, and the complexity of the matter, it may be appropriate to outsource for an independent investigation.

Disciplinary hearings

A school’s disciplinary policy should provide guidance on the process for conducting the hearing; the Acas Code should also be referred to for best practice.

Below is a sample outline to follow for a disciplinary hearing.

• Opening of the hearing, covering introductions to all those in the room, order of proceedings, timescales, and asking the parties if there are any procedural concerns at this stage (which provides a chance to rectify if reasonable and possible)
• The investigation officer to present the case
• Any witnesses the investigation officer wishes to call – questions to the witnesses by the investigating officer, employee, and/or their representative, and the disciplinary panel
• The employee to present their case
• Any witnesses the employee wishes to call – questions to those witnesses by the employee and/or their representative, the investigating officer, and the panel
• Closing statement from the investigation officer 
• Closing statement from the employee and/or their representative
• Panel deliberation
• Decision

The content of the outcome letter following the conclusion of the disciplinary hearing is important. Should a claim be brought for unfair dismissal, the test a tribunal will apply when looking at the outcome of a disciplinary matter is whether the findings were ‘within the range of reasonable responses open to a reasonable employer’. A school is more likely to successfully defend any claims by providing a clear and reasonably detailed explanation for the decision.

Appeal hearings

If a teacher feels the disciplinary action taken against them is wrong or unjust, they should be given the chance to appeal against the decision. The Acas Code states that appeals should be heard without unreasonable delay. Careful consideration should be given to who is appropriate to hear the appeal; this should be someone who has not previously been involved and is more senior to the individual who undertook the disciplinary hearing, which may mean a governor should undertake the appeal hearing.

Reference should be made to a school’s disciplinary policy, which should provide some guidance on conducting the appeal. The Acas Code should also be referred to. Depending on the content of the appeal from the teacher, the appeal may be a review of the decision reached by the disciplinary panel or a full rehearing.

Once more, the content of the appeal outcome letter should be drafted with clear and reasonable detail to explain the final findings fully.

References to the DBS or TRA

Depending on the findings and outcome reached regarding the disciplinary allegations, there may be a duty on a school to make a referral to the Disclosure and Barring Service (DBS) and/or the Teaching Regulation Agency (TRA).

KCSIE provides that the outcome of any allegation must be recorded in a specified way as either substantiated, malicious, false, or unsubstantiated. There is a legal requirement for schools to make a referral to the DBS where the school consider a teacher has engaged in conduct that harmed (or is likely to harm) a child or if a teacher otherwise poses a risk of harm to a child.

The TRA is the regulatory body responsible for investigating allegations of serious misconduct against teachers and headteachers in schools in England. A referral can be made in the case of allegations of serious misconduct against a teacher and can be made by a teacher’s employer, members of the public, the police, or the disclosure and barring service.

A referral is only appropriate if the alleged misconduct is so serious that it warrants a decision on whether the teacher should be prevented from teaching.

Schools have a statutory duty to refer to TRA in all cases of serious professional misconduct and must consider a referral whether there is a dismissal for misconduct or whether they would have dismissed had a teacher not resigned before completion of the disciplinary process.

The Role of HR and Governors 

In a school setting, it is common for governors to be decision-makers at some stage in a disciplinary hearing. On one side, this provides a level of objectivity and independence; on the other side, governors are generally volunteers without experience in conducting investigations or hearings.

It is recommended that governors are provided with training and refresher training periodically, so if called upon, they have the relevant training and confidence to carry out the role. Birkett Long provides such training in relation to undertaking an investigation, carrying out meetings, and attending appeal meetings.

HR can provide support to governors with any role in relation to a disciplinary investigation or hearing, but such support must be limited to procedures and points of law and not delve into levels of culpability and suggestions on the outcome of the disciplinary hearing.

In the case of Ramphal v Department of Transport UKEAT/0352/14 there was an investigation into expenses claims and the use of hire cars on behalf of an employee. The HR adviser supporting a colleague conducting the investigation advised on procedure as well as commenting on the employee’s culpability, and evidence showed that the draft report changed from a final written warning to recommending dismissal. The employee brought a claim against the employer. The Employment Appeal Tribunal found the actions of the employer’s HR member to be unfair and set out some useful parameters:

“an Investigating Officer is entitled to call for advice from Human Resources, but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.”

If you are a senior leader or HR professional within a maintained school, academy, multi-academy trust or independent school and would like to discuss how we can assist with disciplinaries or conduct issues, please get in touch. I can be contacted on 0330 818 2907 or via email at helena.oxley@birkettlong.co.uk.