Publication of disciplinary decision can be sufficient sanction
Wallace v Secretary of State for Education [2017] EWHC 109 (Admin)
The Appellant held the role of "Super head" of five formerly under-performing schools ("the Schools"). This case arises from his relationship with IT company C2 Technology Limited ("C2"), which in the period 2008 to 2013, received payment for services of more than £1 million from the Schools. The Appellant had not disclosed the fact that he had acted as company secretary to C2 between 1999 and 2004 and that his friend and partner was the company director. There was a clear, undisclosed conflict in existence and this relationship was only identified following an internal audit in 2013.
An investigation was launched and the Appellant was summarily dismissed from his role. The Appellant's conduct was reported to the National College for Teaching and Leadership. A professional conduct panel found a number of serious allegations proved (but critically, not that the Appellant had realised his actions were dishonest). Having established misconduct, the Panel heard several positive testimonies to his work and character and of his insight into his actions and recommended that no prohibition order be imposed because of the "unusually significant public interest in [him] being allowed to continue his work".
Under powers conferred by the Education Act 2011, the Secretary of State reviewed the panel’s recommendation. The Teachers' Disciplinary (England) Regulations 2012 allow for two sanctions only; a permanent prohibition order preventing the teacher from carrying out any “teaching work”, or publication of the decision including details of the findings of misconduct proved. The Secretary of State rejected the Panel's recommendation, deciding that a prohibition order should be imposed for at least two years.
The appellant appealed on grounds which included that the secretary of state had failed to consider imposing the lesser sanction and failed to apply the test of proportionality properly.
Holgate J addressed the unusual nature of the disciplinary scheme introduced by the 2011 Act and 2012 Regulations, in that it only provides for two sanctions and not, for example, the imposition of a warning or conditions on registration. The judge identified that professional disciplinary proceedings are concerned primarily with the public interest in maintaining professional standards rather than punishment, and that the publishing of a finding of misconduct would likely have an adverse effect on a teacher's reputation and employment prospects and as such, should in itself be considered a considerable sanction. He concluded that the public interest in retaining a person such as the Appellant (who was noted demonstrated a "considerable reputation for successfully raising standards in failing schools" and was seen as an inspirational educator) who was able to make a valuable contribution to a profession should be a factor carrying substantial weight against prohibiting him from working in that profession.
Holgate J found that the Respondent had not carried out any proper proportionality assessment, but instead carried out a simple balancing exercise, in which she considered the public interest would be best served by the imposition of a restriction order. He concluded that the failure to give material consideration to the alternative sanction available in the circumstances was wrong and the appeal was allowed. On the basis that the arguments in the case were finely balanced and no more limited order could be made under the statutory scheme, the Respondent's prohibition order was set aside and the case was not remitted to them for a redetermination.
Although the specific context of the statutory scheme was relevant to the judge's decision, the case is an important reminder to all regulatory decision-makers of the importance of giving careful consideration to lesser sanctions before ruling them out, in order to avoid the imposition of disproportionate, punitive sanctions. In some cases, the impact of publication on a professional's reputation may be a factor which needs to be considered when making this assessment.