A Barrister's Advice to Educators Referred to the Teaching Regulation Agency

Having trained as a teacher, and now working as a direct access barrister (someone the public can come to for legal advice without the need to go through a solicitor); I have seen an increasing amount of clients including, but not limited to teaching professionals, students, parents and other education professionals coming directly to me for legal advice from all sectors of the educational world for a variety of reasons.

Firstly, I am told, they do not wish to engage a solicitor in order to save themselves double legal costs as a lot of cases end up with Barristers in the end anyway. Secondly, because I have worked in education and understand it and thirdly, because of having an employment law background.

With experience of teaching in schools to all age groups (mostly secondary), sixth form, colleges, and university level. I am remarkably familiar with the workings of educational institutions and their composition. Moreover, having first hand personal, professional, and legal experience having faced difficulties myself when I taught, I often see the same issues arising over and over again even today.

In this series, I will cover various aspects within the educational world with a view of assisting readers who may be facing similar issues.

If you would like me to cover a topic in particular, please do email me on haresh.sood@tbgbarrister.co,uk

Introduction

Facing regulatory proceedings can be extremely stressful and difficult, especially when your entire professional career is on the line. The key thing NOT to do is, bury your head in the sand, so make sure you get help incredibly early. Therefore, if a referral is made about you to the TRA, there are a number of stages to follow in my view before matters escalate.

1. Understand who the TRA are

It is surprising how many teachers have never heard of the TRA, let alone know that they are regulated by it. Therefore, it is important to note the key paragraph on the TRA website which states as follows;

‘Responsibility for the regulation of the teaching profession, including misconduct hearings and the maintenance of a record of teachers, trainee teachers and those who hold a teacher reference number.’

2. Understand the referral made about you

Carefully read what has been written in the referral documentation you receive about you and understand the conduct you have been referred for. The TRA will be interested if your conduct appears to be unprofessional and may bring the profession into disrepute.

It is human instinct to deny and disagree with allegations, but when and if there is evidence supporting them, it is imperative that you seek legal advice immediately and face the allegations head on, without ignoring them.

3. Decide who to turn to

It may be that your union is able to assist you, therefore they should be your first port of call. Immediately check your union membership documents and whether you have access to legal advice through it.

For example, the NASUWT have very nicely laid out the benefits available within their membership packages, one of which is legal advice, please see here NASUWT | Free Legal Cover from Thompsons Solicitors

Furthermore, other unions for senior leaders also have hotlines you can call such as the ASCL ASCL - Guidance over alleged misconduct

Some unions have published very good guidance on their website about the TRA such as the NEU in particular, please see; Misconduct and the teaching regulation agency | National Education Union (neu.org.uk).

Whilst other unions have expressed their views on the TRA such as the NAHT Potential new powers for the Teaching Regulation Agency (TRA) (naht.org.uk)

A word of caution: if you have union representatives within your staff circle, just remember, they are also teaching professionals and not lawyers. Therefore, they may not be able to assist you as they may not be trained to understand the complexity of the legal issues involved relating to the allegations you face.

Therefore, if having discussed it with them initially (in confidence), contact the head office of your union for support immediately, as you will find the senior staff based at the head offices have more experience in dealing with such matters as stated above.

I have not covered all the unions in this article as all of them will have diverse ways you can approach them. However, if all fails with your union for whatever reason, or if you are not part of one, get legal advice privately and quickly, DO NOT DELAY this, I cannot emphasise this enough. Whilst this will cost you legal fees (which I appreciate do not come cheap), engaging a lawyer too late, could make matters worse and cost you more eventually, not to mention result in losing your career.

4. Understand the process

It is important to understand the process you will be facing. Therefore, go online and read the website inside out Teaching Regulation Agency - GOV.UK (www.gov.uk)

Moreover, it is crucial you get a legal professional to explain the process you will go through who understand it. It is no use instructing a lawyer, who does not understand the educational world or employment law, because if you were dismissed for example which led to a referral for misconduct, the lawyer will need to understand if the dismissal was done properly also.

5. Seeking clarification from the TRA, but not advice

If you are unsure about anything which is stated in your TRA referral documentation received which is administrative, ask the TRA staff/caseworker by emailing them as they should assist you. Whilst it may appear daunting to contact them considering they sent the referral documents to you; you will find the case workers are usually helpful in assisting teachers as they are simply performing the administrative duties for investigations. If you have a representative, then they should be able to consult with the TRA on your behalf which is usually a better way of corresponding as it can be incredibly stressful.

It is important to note however, any defences or responses to the allegations you face (including those on the form), should only be completed with your own advisor having sought their advice. Do not start emailing responses to the allegations to the TRA and sending defences.

Furthermore, please note, that the TRA will usually have a caseworker and then a legal representative who you may be passed onto to deal with if you have any query. If this happens and before you respond to them, get your own legal advice, because remember they will be the opposing lawyer against you in the case. Therefore, you need to be careful what you correspond with them.

6. Engagement

It is important that you engage in the process and do not ignore it. Many a times people fail to engage as it is incredibly stressful, and they fear what could happen. However, if you do this, decisions could be made in your absence about you. If you look at many decisions on the TRA website, you will come to learn that many teachers never attended their hearings resulting in adverse findings made against them.

7. Response form

Following on from the above, make sure you seek GOOD LEGAL ADVICE, not just friendly advice when completing the form with your responses from colleagues. There are many ‘yes’ and ‘no’ options, but nothing in between you can write. Some allegations are not straight forward and require elaboration. Therefore, seeking advice in completing the form is important on how to respond to it.

8. Discuss the allegations

Speak to your advisor about how matters took place. It is crucial to provide a chronology, so they understand the full circumstances around the allegations. Many a times conduct can be misunderstood for which you may have been referred. For example, pulling a pupil away from a hazardous situation and accidently tearing their shirt in the process could be done with the intention to protect their health and safety. However, the hypothetical colleagues Janice or Barry seeing only the part when you pull the child forcefully back tearing the shirt, could be completely misconstrued. Therefore, the lead up is essential as many conduct issues need explaining.

9. Witnesses

Think about who may support your version of events. Sadly, I have found, this can be difficult as people start taking sides and no one usually wants to assist, (or very few will). If you do get people to support you, tell your advisor about them and get a statement incredibly early from them. For example, if you are accused of making comments in a staff room that are offensive, it is important to understand who else may have heard them and how or why they were said. For example, a staff member discussing their History / PHSE lesson about racism concerning Black History Month with a colleague, may be misheard by the hypothetical Janice or Barry around them in the staffroom who are inclined to gossip. Therefore, remember, it all boils down to having the best evidence. Sadly, educational institutions, in some cases can be insular and some people have in my experience had a tendency to hear and interpret something in a way they want to. Therefore, as they say, cover you back early!

10. Allegations involving criminal conduct/dishonesty/sexual misconduct and other serious matters from the past

The Teacher profession has core standards which are in this link: Teachers' standards - GOV.UK

Quite rightly, I agree that the profession should expect these high standards to be met by all staff teaching. However, if teachers fall below the core standards expected of them, they will be questioned which could lead to consequences as severe as being prohibited from their practice.

However, if your case concerns matter of a more serious nature, discuss this with your advisor and take a second opinion also from a good lawyer.

In many cases, I have discovered, there was an insinuation which was exaggerated by the perception of other staff without any solid evidence. Therefore, it is important to address these allegations meticulously.

11. False / exaggerated allegations

If allegations are falsely made, lack evidence, or exaggerated, then this is a different matter which you should defend but only with good advice. If you do not do this and matters are not properly defended, you could lose your career.

12. Right to defend yourself

You should carefully articulate your responses so that they address each allegation made against you. Again, this should be done with your advisor.

13. Choose a good advisor/representative

Make sure your representative knows the papers inside out, and not only the papers, but the evidence in the bundle paragraph by paragraph brought against you. Whilst I appreciate each advocate has their own style and may not like being told how to prepare your case, but it is imperative that you as the client that you ensure they leave no stone unturned. Moreover, they need to fight your corner 100% tenaciously.

14. My Consultations – Know your position

I often get asked how much it will cost to represent clients. However, being a strong advocate of saving legal fees, I have often advised clients to self-represent with my support in the background. Consequently, many of my clients have appreciated this so that they can keep an eye on their costs.

You do not need to spend expensive hourly rates on solicitors in dealing with the matters I have explained above. Most people I deal with in the educational world are highly articulate, the only thing that stops them from self-representing in such cases is the stress. However, with my advice, many have been able to manage matters alone.

Only when and if matters become more complex, then you may wish to engage further services such as managing the correspondence or representing you ate the TRA hearings.

My strong suggestion is for clients to have an early consultation to know their position with me or a direct access barrister of your choice. This involves sending all your papers in with a page count including all the allegations against you, from which you can receive a quote on fees for the opinion on where you stand. Once the papers are read, a consultation is set up and you will receive your advice. This will work out cheaper overall if you do not miss this step. It is crucial to know if your position is positive or negative early!

If you are a teacher and need advice on any of the above matters, please contact me at The Barrister Group on haresh.sood@tbgbarrister.co.uk