Teaching prohibition order

Overview

A teaching prohibition order might be something you are aware of in the teaching profession.

Essentially, if you are a member of school staff in England and you are referred to the Teaching and Regulation Agency (TRA) you could receive a prohibition order (where you could be banned from teaching).

The TRA investigates cases of serious teacher misconduct and decides whether to refer a case to a professional conduct panel. The panel will then investigate whether to issue a prohibition order. The most recent TRA decisions from teacher misconduct panels can be found here (under ‘news and communication’).

We’ve written more about the topic of professional conduct panels here. If you are an Edapt subscriber we will be able to support you throughout the process.

We’ve also written about the disciplinary process in schools and what constitutes gross misconduct.

In this article, we provide an overview of how teaching prohibition orders can be decided and whether they can be appealed.

What is a teaching prohibition order?

The TRA has published, ‘Teacher misconduct: the prohibition of teachers’ which outlines the full details of how prohibition orders are given.

We would recommend reading it in full if facing a prohibition order as we provide a summary of the document below.

The TRA’s guidance explains, a prohibition order means that the person concerned is not allowed to undertake unsupervised teaching work in schools or the other settings (set out in the guidance.) Where an individual is prohibited, their details will appear on the Prohibited List.

A prohibition order is likely to be appropriate when the behaviour of the person concerned has been fundamentally incompatible with being a teacher. The primary purpose of a prohibition order is to protect pupils, maintain public confidence in the teaching profession and uphold proper standards of conduct, referred to as public interest.

A prohibition order is a lifetime ban, though in some circumstances the teacher may be able to make a request to have it reviewed after a specified period of time.

How is a teaching prohibition order decided?

After considering all of the evidence put before it, a professional conduct panel must make three decisions, in the order shown below.

1 Is the panel satisfied that the facts of the case have been proved?

A panel must decide whether the facts of the case have been proved on the balance of probabilities. This is the same as the standard of proof in civil law cases. This means that a panel will decide that an event occurred if, on an assessment of the evidence available to it, it believes that the occurrence was more likely than not. A different standard is applied in criminal law cases, where the facts must be proved ‘beyond all reasonable doubt’.

Criminal convictions: If there has been a conviction, at any time, of a criminal offence, the hearing will not re-examine the facts of the case and the panel will accept the conviction as conclusive proof that establishes relevant facts

Police cautions: Where there is evidence that the person concerned has received a caution, this establishes that they have made a clear admission of guilt in respect of committing the offence, or offences, for which the caution has been given. Whilst a panel cannot deem evidence of a caution to be conclusive of relevant facts in the same way as a conviction, it will carry significant weight in their considerations

2 Has there been: a) “unacceptable professional conduct”; b) “conduct that may bring the profession into disrepute”; or c) “conviction, at any time of a relevant offence”?

If a panel is satisfied about the facts of the case, it must determine whether this means that one of the three categories above applies.

(a) “Unacceptable professional conduct” is misconduct of a serious nature, falling significantly short of the standard of behaviour expected of a teacher. Misconduct outside of the education setting will only amount to “unacceptable professional conduct” if it affects the way the person fulfils their teaching role or if it may lead to pupils being exposed to or influenced by the behaviour in a harmful way

In making a judgement as to whether the behaviour demonstrated falls short of the standard expected of a teacher, a panel should draw on its own knowledge and experience of the teaching profession and the personal and professional conduct elements of the Teachers’ Standards

(b) “Conduct that may bring the profession into disrepute” should be judged by a panel in a similar way. Misconduct outside of the education setting may be considered to be relevant if it is serious and the conduct displayed would likely have a negative impact on the individual’s status as a teacher, potentially damaging the public’s perception of them, therefore bringing the profession into disrepute. Panel members should use their knowledge and experience to take into account how the teaching profession is viewed by others, and the influence that teachers may have on pupils, parents and others in the community. Panels should take account of the uniquely influential role that teachers can hold in pupils’ lives and that pupils must be able to view teachers as role models in the way they behave

c) “Conviction, at any time, of a relevant offence” refers to a conviction of an offence that is relevant to a person’s fitness to be a teacher, either by a British criminal court or by an overseas court where the offence would have constituted a relevant offence had it been committed in England and Wales.

Where there has been a conviction, the panel is concerned to establish its relevance to the teacher’s on-going suitability to teach. An offence can be considered relevant even if it did not involve misconduct in the course of teaching. In making a judgement on relevance a panel will consider all the facts of the case.

These will include the nature and gravity of the offence, its circumstances and any mitigating circumstances and, in committing the offence, whether and to what extent the individual’s actions:

Were contrary to the standards of personal and professional conduct expected of a teacher, with reference to the Teachers’ Standards
Were relevant to teaching, working with children and/or working in an education setting
Would be likely to have an impact on the safety or security of pupils or members of the public; or
Would be likely to affect public confidence in the teaching profession if the teacher were allowed to continue teaching.

It is likely that all offences that led to a term of imprisonment or that relate to, or involve, any of the following will be considered to be “a relevant offence”:

Violence
Terrorism
Intolerance and/or hatred on the grounds of race/religion or sexual orientation
Fraud or serious dishonesty
Theft from a person or other serious theft
Possession of class A drugs
Supplying of illegal substances of any classification
Sexual activity
Arson and other major criminal damage
Serious driving offences, particularly those involving alcohol or drugs
Serious offences involving alcohol
Serious offences involving gambling
Possession of prohibited firearms, knives or other weapons
Any activity involving viewing, taking, making, possessing, distributing or publishing any indecent photograph or image or pseudo photograph or image of a child6, or permitting any such activity, including one off incidents.

It is less likely that any of the following offences will be considered to be “a relevant offence”:

Minor driving offences
Minor offences involving personal use of alcohol or class B or C drugs away from children and education contexts
Minor offences involving gambling
Isolated minor cases of theft.

These lists provide only an indication of the types of offences that are likely and less likely to be considered “relevant”. Each case needs to be considered on its individual merits by the panel, taking into account the circumstances involved.

Is a teaching prohibition order appropriate?

If a panel has found that there has been “unacceptable professional conduct”, “conduct that may bring the profession into disrepute” or a “conviction, at any time, of a relevant offence”, it must make a judgement about whether to recommend the imposition of a prohibition order by the Secretary of State.

A panel should consider what is in the public interest and whether a prohibition order is an appropriate and proportionate measure.

Public interest considerations would usually include:

The protection of pupils and other members of the public
The maintenance of public confidence in the profession
Declaring and upholding proper standards of conduct

In deciding whether or not the recommendation of a prohibition order is appropriate, professional conduct panels should apply the principle of proportionality, weighing the public interest considerations (as above) against those of the teacher.

It is likely that a teacher’s behaviour will be considered to be incompatible with being a teacher if there is evidence of one or more of the factors below. This list is not exhaustive and the decision should be made by a panel on a case by case basis, after seeking relevant advice from the panel’s legal adviser:

Serious departure from the personal and professional conduct elements of the Teachers’ Standards
Misconduct seriously affecting the education and/or well-being of pupils, and particularly where there is a continuing risk
Actions or behaviours that undermine fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs; or that promote political or religious extremism. This would encompass deliberately allowing the exposure of pupils to such actions or behaviours, including through contact with any individual(s) who are widely known to express views that support such activity, for example by inviting any such individuals to speak in schools

A deep-seated attitude that leads to harmful behaviour
Abuse of position or trust (particularly involving vulnerable pupils) or violation of the rights of pupils
Dishonesty especially where there have been serious consequences, and/or it has been repeated and/or covered up
Sustained or serious bullying, or other deliberate behaviour that undermines pupils, the profession, the school or colleagues
Possession of prohibited firearms, knives or other weapons
Sexual misconduct e.g. involving actions that were sexually motivated or of a sexual nature and/or that use or exploit the trust, knowledge or influence derived from the individual’s professional position
Any activity involving viewing, taking, making, possessing, distributing or publishing any indecent photograph or image or pseudo photograph or image of a child, or permitting such activity, including one off incidents
The commission of a serious criminal offence, including those that resulted in a conviction or caution, paying particular attention to offences that are ‘relevant matters’ for the purposes of The Police Act 1997 and criminal record disclosures
Failure to refer to the police known female genital mutilation (FGM) cases involving girls under 18 where the individual is aware, or should have been aware, of the statutory duty to report such matters but deliberately chose not to do so

Panel recommendations

Following its consideration of all the evidence presented, a panel will make a recommendation to the Secretary of State as to whether a prohibition order should be made in respect of the teacher.

Where a panel recommends a prohibition order is appropriate, it will also recommend whether the Secretary of State should consider allowing a prohibited teacher to make a future application to have the prohibition reviewed.

A panel should consider recommending to the Secretary of State that a prohibition order is imposed with no provision for the teacher to apply for it to be set aside after any period of time where the case involved or permitted any of the following:

Violence
Terrorism
Intolerance and/or hatred on the grounds of race/religion or sexual orientation
Fraud or serious dishonesty
Theft from a person or other serious cases of theft
Class A drug abuse or supply
Serious sexual misconduct e.g. where the act was sexually motivated and resulted in, or had the potential to result in, harm to a person or persons, particularly where the individual has used their professional position to influence or exploit a person or persons
Arson and other major criminal damage
Any activity involving viewing, taking, making, possessing, distributing or publishing any indecent photograph or image or pseudo photograph or image of a child

Decisions on prohibition

Once a senior official from the TRA has received a recommendation on prohibition from a panel they will, within two working days wherever possible, make a decision on whether to impose a prohibition order.

A prohibition order applies for life.

However, it may be decided that a teacher should be allowed to apply to have the prohibition order reviewed after a specified period of time. The minimum period will not be less than two years and the teacher may then apply to have the prohibition order reviewed with a view to having it set aside.

A review is not an appeal against the original decision to impose a prohibition order and panels will not, therefore, reconsider evidence given at the original hearing or new evidence related to the original misconduct that was not considered at the original hearing. The review will only consider the reasons given by the teacher as to why they should now be considered suitable to teach again.

In reviewing an application to have a prohibition order set aside, a professional conduct panel can recommend that either:

The prohibition order should be removed and the teacher given the opportunity to resume teaching
The prohibition order should remain in place and, if so, whether a further specified minimum period should be applied before another application for a review can be considered. This will not be less than one year

What is an interim prohibition order?

The TRA explains that an interim prohibition order prevents a person from teaching until their case has been fully considered and concluded. It may be made only if the Secretary of State considers that it is necessary in the public interest.

Decisions about whether to make an interim prohibition order will be taken on a case by case basis, taking account of the nature and severity of the allegation and the available evidence, including any information as to the likelihood of further incidents.

Crown Prosecution Service (CPS) and/or police action should be taken into account. If a teacher has been charged with an offence an assumption may be made that there is reliable evidence that it has been committed.

If a teacher has been bailed without charge it may be assumed that there is a reasonable suspicion that they have been involved in the commission of an offence, although the evidential threshold is lower than that required by the CPS for criminal charges to be brought.

Although not an exhaustive list, when balanced with the other necessary considerations, the following is likely to indicate that the imposition of an IPO is necessary in the public interest:

Information that the teacher is under investigation by the police, or has been charged, in connection with a serious offence, particularly of a sexual nature and/or involving children
Predatory or sexually inappropriate conduct toward pupils
Actions or behaviours that undermine the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs; or that promote political or religious extremism

An interim prohibition order may be imposed at any time during the investigation, for example as additional evidence becomes available.

If the teacher is currently employed in a teaching position, they may not continue in that role. The teacher’s employer will also be informed in writing and should ensure the person is prevented from continuing in their position until the case is concluded or until the person successfully applies to review the order.

The Prohibited List will clearly indicate that the individual has an ‘interim’ prohibition order.

An interim prohibition order will be reviewed by the Secretary of State, on written request from the teacher after a period of six months since it was imposed or last reviewed.