As of 31 March 2012, as a result of a change in the law, teachers in England are no longer regulated by the General Teaching Council (GTC).

The Education Act 2011 (The 2011 Act) abolished the GTC for England. Teachers are now regulated by the Secretary of State. The Teaching Agency (TA) regulates teachers in England on behalf of the Secretary of State.

Along with a change of regulator, there is a parallel change to teachers' regulations. The Regulations (Teachers' Disciplinary (England) Regulations 2012) set out the procedure to be followed when a teacher's conduct is called into question. The most striking change to the law is that there is now only one sanction available to the regulator if a teacher's actions are found to amount to serious misconduct; the Prohibition Order.

Importantly, the regulations now only apply to cases of serious misconduct. The TA, as the regulator, should only be involved in the most serious cases of misconduct. The TA is therefore not concerned with issues of incompetence, underperformance or less serious misconduct.

Referrals

When a teacher has been dismissed for misconduct by their employer, the employer must consider whether to refer the case to the TA. This referral may result in the imposition of a Prohibition Order.

Such referrals can also be made by a member of the public if they believe that an allegation of serious misconduct has not been adequately dealt with once local procedures have been followed by the teacher's employer or employing agency. Further, the police, the Independent Safeguarding Authority (ISA) or other regulators may also refer cases to the TA.

Prohibition Orders

Previous law permitted the GTC to impose a number of sanctions, including reprimand, conditional registration, suspension (including conditions), or prohibition. These orders have been abolished by the 2011 Act and replaced by a single Prohibition Order.

The Prohibition Order applies to anyone who is teaching, as defined in The Teachers' Disciplinary (England) Regulations 2012.

Prohibition Orders adopt two forms:

  • Prohibition Orders
  • Interim Prohibition Orders

The Secretary of State has the power to make Prohibition Orders and Interim Prohibition Orders. The legislation is clear in that no other sanctions can be applied to teachers who are guilty of serious misconduct.

The aim of the Prohibition Order is to protect pupils and maintain public confidence in the profession. The imposition of the Prohibition Order must be proportionate to the misconduct alleged but not punitive.

Any teacher subject to a Prohibition Order is prohibited from undertaking unsupervised teaching in a school or other setting as defined in the Regulations (Teachers' Disciplinary (England) Regulations 2012).

Once a teacher is subject to a Prohibition Order, the resultant ban is for life. It can, however, be reviewed after a specified period of time, but not before the expiry of a two year period under Section 8 of the 2012 Regulations.

There are certain offences which should never have a review capability. These include offences which have aspects of violence or serious sexual misconduct.

Once the minimum time frame has elapsed, the teacher may apply to the Secretary of State to have the Prohibition Order set aside and the Secretary of State will convene a Professional Conduct Panel (PCP) to consider setting aside the Prohibition Order.

The ISA will continue to safeguard children for issues which include harm to a child and the TA must liaise with the ISA to determine the appropriate course of action when investigating such incidents.

Interim Prohibition Orders

The PCP is not involved in the making of Interim Prohibition Orders. This is a decision taken by the Secretary of State only.

Interim Prohibition Orders are imposed to prevent a teacher from teaching until their case has been heard at the PCP.

The Secretary of State will make an Interim Prohibition Order if it appears that:

  • Reliable evidence that an allegation of misconduct is well founded
  • The imposition is necessary for the protection of children, parents, other school staff
  • It is necessary in the public interest

An Interim Prohibition Order can be imposed at any time during the investigation process. The teacher will be informed that consideration is being given to the imposition of an Interim Prohibition Order and seven days' notice will be given to provide additional evidence that may be considered at the PCP hearing.

When an Interim Prohibition Order is imposed, the teacher is informed in writing that the Interim Prohibition Order will apply immediately.

If employed, the employer will also be informed in writing about the imposition of an Interim Prohibition Order. The employer must take necessary action to ensure that the teacher is prevented from continuing in their position of employment whilst the Interim Prohibition Order is in force.

Should an Interim Prohibition Order be imposed, the teacher will appear on the 'Prohibited List' and they cannot apply to the High Court to appeal the imposition of such an order.

Professional Conduct Panel (PCP)

Decisions upon the imposition of Prohibition Orders are made by the PCP of the TA.

After considering the evidence in front of it, the PCP must consider three questions in the following order:

  1. Is the PCP satisfied that the facts of the case have been proved
  2. Has there been "unacceptable professional conduct", "conduct that may bring the profession into disrepute" or a "conviction, at any time, of a relevant offence"
  3. Is the Prohibition Order appropriate

In order to impose a Prohibition Order, the PCP must be able to answer each of these questions in the affirmative.

Taking each question in turn:

Is the PCP satisfied that the facts of the case have been proved?

The facts must be proved on the balance of probabilities. Information from the police or previous hearings may be considered in evidence. If this question can be answered positively, then the PCP can move on to question number two.

Has there been "unacceptable professional conduct", "conduct that may bring the profession into disrepute" or "conviction, at any time, of a relevant offence"?

Unacceptable professional conduct is concerned with misconduct of a serious nature, falling significantly below that behaviour expected of a teacher and should be judged by the latest standards published by the TA. Conduct outside of teaching will only be unacceptable professional conduct if it affects teaching or exposes pupils to harm.

Conduct that may bring the profession into disrepute is concerned with allegations outside of the school environment which, if it is directly related to teaching and serious in nature, may bring the profession into disrepute.

The conviction, at any time, of a relevant offence considers any conviction, at any time, relevant to a person's fitness to teach. This can be either a British conviction or one that would be a conviction if committed in England and Wales but the offence must be a 'relevant offence'.

An offence will be relevant if it occurred outside the course of teaching and:

  • It is contrary to the standards of that expected of a teacher, with reference to the latest standards published by the Secretary of State
  • It is relevant to teaching, in that it included working with children in an education system
  • It is likely to have an impact on safety or security of pupils, public or public confidence in the profession
  • It led to a term of imprisonment

Finally, if questions one and two above are answered in the affirmative, the PCP must consider the following question:

Is the Prohibition Order appropriate?

If the PCP finds that the individual is guilty of unacceptable professional conduct, conduct that may bring the profession into disrepute or a conviction, at any time, of a relevant offence, it must decide whether to impose a Prohibition Order.

The PCP has a core duty to maintain public confidence in the profession and in doing so, it must consider the interests of all those affected. The panel should consider whether the imposition of a Prohibition Order will maintain the public interest and must apply the principle of proportionality when making its decision. This means that it must balance the interests of the public with those of the teacher.

Even when the PCP feels that the evidence in the investigation tips the scales in favour of a Prohibition Order, mitigating circumstances must also be taken into account.

If any relevant mitigating criteria are apparent then a Prohibition Order may not be deemed appropriate.

When the PCP determines a Prohibition Order is necessary, the Secretary of State will confirm whether the Prohibition Order is necessary and whether the Prohibition Order should be subject to review.

The PCP's decision will be publicised.

Appeals

The teacher may appeal against the decision to impose a Prohibition Order within 28 days of the date of the service of the Prohibition Order.