Can Teachers Boycott Ofsted?

The Office for Standards in Education, Children’s Services and Skills (Ofsted) are responsible for inspecting services providing education and skills for learners and also regulate services that care for children and young people in England.

Due to the nature of its work, Ofsted attracts much attention from various stakeholders which have included calls for it to be replaced or reformed, most recently by the Shadow of Secretary of State for Education. A recent tragedy involving the death of Ruth Perry, a primary school headteacher has led to an increase in discussion about the impact of inspections on wellbeing. Teaching unions including the NEU, NAHT and ASCL have called for inspections to be paused. One approach suggested by others is for teachers to boycott Ofsted inspections altogether.

This Edapt article seeks to lay out the legal situation regarding Ofsted inspections and explain potential consequences for teachers and educators who may wish to boycott the inspection process. For clarity, this article makes no judgement on Ofsted’s role and impact on the sector nor the merits of any potential teacher action. The article seeks only to provide objective guidance on the existing legislation around the issue so that teachers and education staff can come to their own informed decisions.

Edapt are an apolitical and independent organisation (not a trade union) who offer edu-legal support and professional casework services in individual employment disputes and allegations, similar to some of the services offered by a traditional trade union. You can find more about Edapt by clicking here.

Introduction

Headteachers are typically informed of an upcoming inspection (often referred to as ‘the call’) the day before an inspection is due to take place. Graded inspections are carried out under Section 5 of the Education Act 2005 whereas ungraded, urgent or instructed inspections are carried out under Section 8 of the same act. Under certain circumstances, headteachers can ask for inspections to be deferred. For example, it would not make much sense for a school to be inspected whilst the school was closed due to adverse weather or on an INSET day.

Obstructing or refusing to take part in a school inspection could have serious potential consequences for teachers and we recommend that all staff read this guidance to ensure that they are appropriately informed before taking any decisions.

Am I allowed to refuse to take part in an Ofsted inspection?

Under Section 10 of the Education Act 2005, it is an offence to ‘intentionally obstruct’ the Chief Inspector in relation to the inspection of a school for the purposes of Section 5 or Section 8 inspections. These are the most common inspections in schools. Anybody found guilty of this offence is liable to a fine up to a maximum of £2500. As this is a criminal breach of the law rather than a civil breach, it could become part of a criminal record. The Chief Inspector can delegate their powers and rights to inspect so this would apply to the obstruction of any Ofsted inspector. Under the act, the Chief Inspector has the right of entry to school premises at all reasonable times.

What does ‘intentionally obstruct’ mean?

Whilst the legislation does not provide specific details on what constitutes an obstruction, further guidance by the Crown Prosecution Service surrounding Department for Education (DfE) prosecutions in similar circumstances under the Education and Skills Act (2008) state that:

• The Inspector must have been obstructed. That is to say that his work must have been made more difficult by the action of the defendant.

• The obstruction must be “wilful”, meaning the defendant must act (or refuse to act) deliberately, knowing and intending his act will obstruct the Inspector.

• In parallel with the “in the execution of his duty” requirement it is clear that the s. 97(4) offence requires the Inspector who is being obstructed to have been engaged in functions in relation to the inspection at the moment of his obstruction by the defendant.

This indicates that it is not just physical obstruction that is relevant here but rather an intentional disruption of the inspection process.

What if teachers only comply with certain aspects of the inspection like safeguarding requirements but refuse other elements e.g. teaching and learning?

In line with the guidance above, this would still be classed as intentionally obstructing an inspection and so may also be a criminal offence.

What are the implications for a headteacher who refuses to comply with an inspection?

In addition to the potential criminal offence mentioned above, headteachers should also consider the employment consequences of their decision. Whilst individual contracts can vary, it is likely that refusal of this sort could be deemed to be a breach of contract with their employer as it is likely that any contract would have an implied term to support any Ofsted process. This is particularly relevant given the safeguarding responsibilities and processes that Ofsted routinely inspect.

It is also possible that such conduct could be deemed to constitute ‘gross misconduct’ which could lead to suspension or dismissal. The fact that the act is also a criminal offence adds weight to the likelihood of this meeting a threshold for gross misconduct.

If the headteacher were to be instructed by the appropriate body e.g. School Governors, to comply but refused this instruction, this may also be grounds for disciplinary action.

Headteachers should also be wary of publicly declaring any intentions on social media etc around refusal to comply with Ofsted. This could lead to an argument being made that this could bring the school or employer into disrepute.

What are the implications for other members of staff if a headteacher refuses to comply with an inspection?

There are no immediate implications from a legal point of view for other staff members if the decision has been made by the headteacher. However it is worth considering the potential consequences of supporting the action which are explained in subsequent sections.

Other senior members of staff may be more directly affected if they are asked or required to support any inspection if for example the headteacher was suspended pending an investigation.

What if teachers choose to support a decision taken by a headteacher to refuse to comply with an inspection?

The situation is less clear here as some protection might be afforded to teachers around the issue of intentionality as they could be seen to be following a managerial instruction. However, this protection is by no means guaranteed and less likely to be relevant in cases where teachers are making clear their intentions either through social media or other actions e.g. a protest.

What if my school leadership is supporting an inspection but I don’t want to comply as an individual member of staff?

This could be deemed to be obstruction of an inspection and therefore you would be liable for prosecution. Similar to the situation regarding headteachers, you are also likely to be in breach of your employment contract and your actions could constitute ‘gross misconduct’ which could lead to a dismissal.

How does this issue relate to the Teachers’ Standards and potential misconduct?

The Teachers’ Standards set out specific standards that teachers in England must adhere to. Part Two of these standards relate to ‘Personal and Professional Conduct’. A refusal to comply with an Ofsted inspection could be considered to be in breach of these standards with perhaps the most relevant one being:

• Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.

A separate standard also refers to teachers upholding the rule of law. If teachers are found to be in breach of these standards, there is the possibility that they may be referred to the Teaching Regulation Authority (TRA) who may choose to convene a professional conduct hearing. You can read more about the TRA in this article.

What if I want to support the actions of teachers in other schools?

Whilst the issue of Ofsted inspections has garnered considerable attention, teachers should be wary of how they demonstrate their views. This could range from social media posts right up to supporting a protest outside another school. At the extreme, physically forming a barrier to prevent an Ofsted inspector carrying out their duties would clearly count as an intentional obstruction and be liable to prosecution. It is also possible that other inappropriate actions could be deemed to bring your employer into disrepute or potentially in breach of the Teachers’ Standards. As with all controversial issues, teachers should exercise some caution in how they are choosing to show their support. That is not to say that solidarity cannot be expressed but the tone and intention of such support should be considered carefully.

What happens if we want to join together as a staff body or as part of a union action to boycott an inspection?

Teachers and staff should be very wary here as any collective action could be deemed to qualify as ‘Action Short of a Strike’. Any action of this type taken without an official ballot would be classified as ‘unofficial industrial action’ and therefore the legal protections surrounding official industrial action would not apply. Staff taking part would be in breach of their employment contracts and potentially be liable for dismissal. You can read more about industrial action in our guidance here.

Has anything like this happened before?

In Northern Ireland, teachers have previously refused to fully engage with their equivalent of Ofsted known as the Education and Training Inspectorate. You can read more about this here. It is worth noting that teachers in Northern Ireland operate under a separate regulatory and legal framework and so the consequences of such action are different.

What can I do if I have further questions?

If you are an Edapt subscriber, please get in touch with our professional caseworkers who will be happy to assist. If you are not an Edapt subscriber you may wish to contact your union if you are a member of one. We would advise all teachers and education staff to ensure that they have access to support and advice either through Edapt or a traditional teaching union.