The General Teaching Council for Scotland

General Teaching Council for Scotland Fitness to Teach Outcome

Full Hearing

25, 26, 27 March and 23 April

 Teacher Martin Kennedy - Present (represented)
 Registration Number 785681
 Registration category Secondary, English
 Panel Maureen Anderson (Convenor), Peter Hempsey and Peter Rankin
 Legal Assessor James Mulgrew
 Servicing Officer Aga Adamczyk/Kirsty McIntosh (Tuesday 23 April 2019)
 Presenting Officer Robbie Wilson, Anderson Strathern
 Teacher's representative Graeme Watson, Clyde and Co

Any reference in this decision to:

  • "GTCS" means the General Teaching Council for Scotland
  • the "Panel" means the Fitness to Teach Panel considering the case
  • the "Rules" (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2012 or refers to a provision (or provisions) within them
  • the "Register" means the GTCS register of teachers

Preliminary issues

The Panel did not require to deal with any preliminary issues at the commencement of the hearing.

Allegations

The following allegations were considered at the hearing:

Whilst employed as a teacher by Glasgow City Council at Lourdes High School, you did:

  1. On 19 September 2013, push S3 pupil, Pupil B on his body and you did thereafter grab him by the arm and push him;
  2. On 25 September 2013, put your hand into S2 pupil Pupil C’s top pocket of her blouse and remove cigarettes and in so doing you did cause her alarm and distress;
  3. On 1 October 2013, act in an aggressive and intimidating manner towards the Head Teacher;

and in light of the above it is alleged your fitness to teach is impaired and you are unfit to teach as a result of breaching the General Teaching Council for Scotland's Code of Professionalism and Conduct 2012, parts to include the following 1.2, 1.3, 1.4, 1.6, 2.3, 4.2 and 4.3.

Teacher’s Admissions

In relation to allegation (b), the Teacher admitted removing cigarettes from Pupil C’s top pocket, but that was not an admission of the full allegation.

Hearing Papers

In accordance with Rule 1.7.17, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the hearing:

Presenting Officer’s Hearing Papers
P1 Glasgow City Council Investigation Report completed by Witness 1 together with appendices 1-17 [redacted version]
P2 Referral letter from Senior HR Manager, Glasgow City Council to GTC Scotland dated 26 June 2015
P3 Note of telephone call between Gillian Sim, GTCS and Senior HR Manager, Glasgow City Council, dated 21 July 2015
P4 Glasgow City Council withdrawal of referral letter to GTCS dated September 2015, received 15 September 2015
P5 GTCS response letter to Glasgow City Council, dated 9 October 2015
P6 Signed statement of Witness 2, dated 11 August 2016 - attended the Full Hearing
P7 [document redacted]
P8 Statement of Witness 1, dated 15 March 2017 [redacted version] - attended the Full Hearing.

Teacher’s Hearing Papers
T1 Witness statement of the Teacher, dated 20 October 2017
T2 Code of Discipline for Teachers, Glasgow City Council
T3 Statement of Colleague 1 (late paper)
T4 Report on a Secondary Teacher – Secondary (late paper)

Servicing Officer’s Hearing Papers
S1 Notice of hearing dated 22 February 2019 with email delivery and read receipts
S2 Completed hearing response form signed and dated 25 February 2019
S3 Postponement Application – Convener’s Decision, dated 27 November 2018
S4 Postponement Application – Convener’s Decision, dated 23 November 2018
S5 Adjournment Decision Annex, dated 1 and 2 May 2018 [redacted version].

 

Summary of Evidence

The allegations were alleged to have occurred at a time when the Teacher was employed on a temporary basis by Glasgow City Council at Lourdes High School. After allegations had been reported to senior management and to Human Resources at Glasgow City Council, the Teacher was suspended from that employment and an internal investigation was instructed. Witness 1, the Depute Head Teacher at Lourdes Secondary School was instructed to carry out an investigation. Witness 1 conducted interviews with a number of persons including the Teacher and then submitted her investigation report to HR at Glasgow City Council. Her investigation and report covered all three allegations.

The summary of evidence of each allegation contains direct quotes from the records of interviews of a number of persons.

Allegation (a)

Pupil B was interviewed by Witness 1 in the presence of a clerical assistant on 22 October 2013. Pupil B signed the record of interview as true and accurate on 25 October 2013. A copy of that record of interview was included in the investigation report. The record of interview notes that Pupil B was asked, “Do you remember the incident that day in the English class and can you tell me in your own words what happened?” No date was suggested to Pupil B in the question nor what was noted in the record of the preliminaries of the interview. Pupil B is noted as responding, “I was sitting at the back of the room. I got up to ask to go to the toilet and Mr Kennedy said ’No’ and pushed me with both hands and told me to go back to my seat. I said something like ‘whit ye daen’ It was kinda hard.  I didn’t fall back but I had to take a couple of steps back. I started arguing with him at first then about 20 or so minutes later I got up to sharpen my pencil and he grabbed me by the arm and told me to go back to my seat. It was my right arm about there (Pupil B indicated his upper arm).” Pupil B was then asked, “What did you do?” Pupil B responded, “I was angry and told him to get his hand off me and I tried to explain about the pencil and he told me to go back to my seat and he would get me a pen he pushed me again. I said something like ‘Why are you pushing me? I’m just getting up to sharpen my pencil.’ The Teacher said something like, ‘I told you to sit in your seat and you keep getting up.’ I got even more angry, ‘cos he grabbed and pushed me and I thought this was wrong. The bell went a little while later and I went to my next class.”

Pupil B referred to three other pupils having observed the incident. Pupil B also reported having spoken to Colleague 2 (Principal Teacher, English) about the incident and that she had put him into another class for a while.

One of the pupils that Pupil B had referred to was Pupil D. He was interviewed by Witness 1 in the presence of a clerical assistant on 10 October 2013. He signed a copy of a record of that interview as true and accurate on 21 October 2013. The record of interview notes at the preliminary section that Witness 1 explained to Pupil D that the purpose of her questions was to establish the facts regarding his recollections over allegations made by Pupil B regarding an incident on 25 September 2013 in the Teacher’s class. The record of interview notes that Pupil D was asked, “What happened in class that day?” He responded, “I arrived at class, Pupil B was making a noise and the Teacher told him to sit down and be quiet.” He was then asked “What happened next?” He responded, “Pupil B got up and went half way down the room.” He was then asked, “Where had Pupil B been sitting?” He responded, “At the back of the class and the Teacher put his hands on him and pushed him and told him to sit back in his seat. He put both hands on Pupil B’s chest.” He was then asked, “What did Pupil B say?” Pupil D responded, “What you doing?” Pupil D stated that, “He [Pupil B] looked angry, he had a kind a growl on his face.”  He was then asked, “What did you think?” He responded, “I thought, I mean, I had never seen a teacher push a student before, I thought, ‘What’s he doing?’ At first I thought it is not serious but the second time the Teacher pushed him I thought more about it because you just can’t push a student.” Pupil D was then asked, “What happened after that?” He responded, “Pupil B got up again to sharpen his pencil. The Teacher was near his seat. He wasn’t up fully when the Teacher pushed him back in his seat.” He was then asked, “How did he do that?”  He responded, “Put his hands on him”. He was asked, “What did Pupil B do?” Pupil D responded, “He [Pupil B] said, ‘Why you pushing me, I was only going to sharpen my pencil.’” Pupil D was asked, “How did he [Pupil B] look?” and responded, “Angry”. Pupil D then reported that he thought what he had observed was wrong and that the Teacher was always shouting at pupils and referred to an occasion when the Teacher shouted into another pupil’s face. The record of interview notes that when asked how he felt about the incident, Pupil D indicated that he had never seen any teacher put hands on a pupil before. He reported that Pupil B told him the following day that he was going to see Pastoral Care. Pupil D indicated that the Teacher had given Pupil B awards and so could not understand why he had pushed Pupil B. Pupil D reported that two other pupils had observed the incident.

The Teacher was interviewed by Witness 1 on 29 October 2013. A record of that interview was prepared. The Teacher signed a copy of that record of interview as being true and accurate on 20 November 2013. In relation to this particular incident, the record of that interview notes that the Teacher was asked, “The allegation concerns an incident on 19 September 2013. It is alleged you physically pushed an S3 pupil, Pupil B, and grabbed him by the wrist causing distress and discomfort. Can you tell me in your own words what happened?” The Teacher is recorded as responding, “I was at a loss when the HT brought this up and she said she was just passing it on. I said is it to do with wee Pupil B in S3? He is so complex and challenging he makes Pupil E look blissfully happy and balanced. S3 is a massive class; there are bags of personality but off the scale. Pupil B is a crazy pupil with a crazy personality; I was just trying to bring him round. He swings on his seat not at 45 degrees not at 90 degrees but horizontally. As a teacher and as a parent I worry, other kids were complaining so I asked him to please sit forward. 10 minutes later the same thing happened again and kids were complaining. There was an element of general pastoral care as I was trying to get his chair at a safe angle. Half way through the class he wanted to go to the toilet so I said sit down. He said, ‘No I wanna go’. I said, ‘No you cannot go.’ and the bell went about 2 minutes later. Pupil B is challenging but having said that he was the first boy I gave a certificate to in that class for improved behaviour. Colleague 2 (PT) came along to present it to him. He was just beginning to conform and I was not going to refer him. I suspect he was challenging all through primary school. There was no manhandling on any occasion. As I said, he makes Pupil E look well balanced.” the record of that interview notes that the Teacher was then asked how many times he attempted to leave the class and responded, “Once, the first half of the lesson was about him swinging on his chair and I have a duty care and when he realised I was not going to allow him to continue swinging on the chair, the second half was when he wanted to go to the toilet. There was no malice, he was just difficult.” The Teacher was asked whether at any point he touched Pupil B and the Teacher responded, “No, I put my hands up and said you can’t go.” The Teacher denied grabbing Pupil B at any point and denied putting his hand on Pupil B’s chest or arm. The Teacher was asked whether he put his hand on Pupil B’s chair and he responded, “Probably, to stop him falling back.” The Teacher indicated that Colleague 2 was someone he would wish Witness 1 speak to about the allegation.

Witness 1

 

Witness 1 attended the Full Hearing and answered further questions in relation to Allegation (a).

Witness 1 had been a qualified secondary school teacher since 1981. She had previously held positions as Principal Teacher and Depute Head Teacher. As at the date of the hearing she had been a Depute Head Teacher for around 21 years.

Witness 1 indicated that Pupil B was a vulnerable pupil who needed support from his pastoral care teacher and year head. She reported that she had spoken to one other pupil about the allegation as two other pupils had left the school. Neither Pupil B nor Pupil D were pupils that she had many dealings with. Witness 1 reported the Teacher as presenting as very factual and matter of fact.

The Witness was later cross-examined. She had not noted how long the interviews had taken. She had not noted where Pupil D had been sitting or how he was orientated in the class. She accepted that there was a discrepancy between the accounts of Pupil B and Pupil D in relation to whether Pupil B was in or out of his seat when allegedly pushed by the Teacher. Witness 1 also accepted that she had not spoken to other pupils about the alleged incident. She was not certain how many pupils were in the class at the time or who were at the same table. She accepted that she had not followed up what Pupil B or Pupil D had said with the other nor had she followed up what the Teacher had said to either Pupil B or Pupil D.

The Witness was then questioned by the Panel. The Witness indicated that she had been keen to get the investigation done as quickly as possible, but the September weekend and October week holidays had impacted upon that. Further, writing to the parents of pupils that she had interviewed had involved some time as well. The Witness indicated that, as far as she was aware, prior to formal interviews, pupils had not been spoken to about the incident. The Panel noted that the Witness used the word “victims” when referring to pupils in the context of the allegation. The Witness indicated that, to the best of her knowledge, the record of interviews was a record of what had been said in the meetings with the persons interviewed.

Allegation (c)

Witness 1 interviewed Witness 2 on 23 October 2013. Witness 2 signed a record of that interview as true and accurate on 28 October 2013. Witness 2 reported during the interview that she arranged to meet with the Teacher as a result of complaints made regarding him.  The record of that interview notes that Witness 2 identified from the school timetable a period of time when the Teacher did not have a class and phoned him to come along to her office. She reported her tone was even, that she was not trying to make him unduly alarmed whilst at the same time not making him think the visit was of no consequence.

The record of that interview notes that Witness 2 reported that the Teacher was very agitated when he came into her office. He seemed unduly anxious. Witness 2 indicated that she advised the Teacher that there had been a couple of complaints, that they must be investigated, that it was at a very early stage but, depending on the investigation, there may be possible consequences. Witness 2 reported the Teacher’s reaction as immediately extremely aggressive. She reported the Teacher as verbally attacking her. Witness 2 reported that the Teacher complained that she had never wanted him in the school. Witness 2 reported that he said he was the tenth or twentieth person sent in by HR and questioned her why that was. He also stated that he had asked to have a meeting with Witness 2 and that she had had tried to palm him off with someone else. Witness 2 took this as a reference to a passing meeting in the corridor on an earlier occasion. Witness 2 was taken aback by his tone and the aggression in it. Witness 2 reported that it was clear that he wanted to engage her as to whether or not she had wanted him in the school in the first place, and not about the complaints. Witness 2 indicated that she said to the Teacher that she had been delighted when he had arrived. She reported the Teacher as continuing to pursue the idea that he had not been wanted and he dismissed her assurances. Witness 2 reported the Teacher’s tone as remaining critical. She then stated that the Teacher wanted to know more about the complaints. Witness 2 stated that she tried to tell him calmly that that was not part of her role and that he would hear from an Investigating Officer. Witness 2 reported that the Teacher “sneered” at Witness 2 that Witness 2 did not seem to know very much about what was going on and insulted her. She then stated that the Teacher engaged in “a longwinded monologue” and gave an account of events which he speculated were the focus of the complaint. Witness 2 stated that the Teacher tried to guess who had passed on the complaint. He referred to an incident having been dealt with. Witness 2 took the implication that she was deliberately bringing back up a complaint to make the Teacher’s life difficult. She reported the Teacher as continuing to try to get information about the complaints by aggressive challenges. Witness 2 stated that she explained she could not provide information about the complaints. She reported the Teacher as trying to pick a fault in her because she could not answer his questions in the way he wanted. Witness 2 felt this was an attack on her professional credibility. She stated she was made to feel very alarmed and upset by his manner. The Teacher concluded the conversation by indicating that he found the whole thing completely unsatisfactory and left the room angry which Witness 2 found upsetting. Witness 2 reported that a colleague, Depute Head Teacher at Lourdes Secondary School,  attended  her office fifteen minutes later and she observed  Witness 2  was still upset. Witness 2 sent an e-mail to the Head of HR that evening, as she was still very upset by the end of the day.

Witness 1 interviewed the Depute Head Teacher at Lourdes Secondary School on 1 November 2013. The Depute Head Teacher had signed a record of the interview as true and accurate on the 5 November 2013. The record of that interview notes that in that interview the Depute Head Teacher was asked about a conversation she had with Witness 2 on 1 October 2013. The Depute Head Teacher thought that Witness 2 looked shaken and distracted. Witness 2 reported to the Depute Head Teacher that she had just had a conversation with the Teacher which she described as somewhat aggressive and that she felt vulnerable. The Depute Head Teacher indicated she had never witnessed Witness 2 shaken and emotional before nor so affected by a member of staff.

Witness 1 interviewed the Teacher in relation to this particular allegation on 29 October 2013 as referred to above. The record of that interview notes that the detail of the allegation was put to the Teacher, that on 1 October 2013 he had demonstrated unprofessional conduct by behaving in an aggressive and intimidating manner towards Witness 2. The Teacher was asked to provide his comments.  The Teacher stated that he had been called to attend at Witness 2’s office. His response was then recorded as follows, “What happened then was shocking. I was told no instructed four times to sit down, her tone was shocking this is the first time I have ever been called to a HT’s office. I listened and listened and listened her tone was bullying, hectoring and threatening. I said, ‘Excuse me Head Teacher. Can I ask a question?’ and she replied, ‘You are being very rude interrupting me’ and I thought, ‘wow for asking one question’, in my opinion she acted very unprofessional. I said to her, ‘Do you know what the scenario is’ and she said ‘No, someone else was dealing with it’ so I said, ‘Don’t you think there is a bit of a rush here?’” The Teacher’s impression was that Witness 2 had an air of threat and harassment. He indicated he sat for ten minutes and was accused of being rude for asking one question. He considered Witness 2’s approach to be unprofessional and quite appalling. The Teacher stated that he stood up and offered to shake hands with her as he still had the grace to be respectful. The Teacher clarified that it was suggested to him that he was rude interrupting when he had referred to his first meeting with Witness 2. He denied that he raised his voice. He was concerned how the meeting was handled, the tone of it, the haste of it and, as he put it, “the haranguing and bullying of me.” The Teacher referred to his first day at the school and being asked by Witness 2 “Why are you here?”

At the Full Hearing, Witness 1 then answered further questions about the allegation. She noted that the account provided by Witness 2 and that of the Teacher were completely different. In relation to the Teacher’s own view of the incident, she indicated that the Teacher’s view was that he had not done anything wrong. Witness 1 had worked with Witness 2 for one year and had never witnessed her acting in the manner described by the Teacher.

Witness 2 had provided a statement in relation to this allegation and gave evidence before the Panel at the Full Hearing. She had retired from her teaching career during which she had held a number of un-promoted and promoted posts culminating in her holding the position of Head Teacher at Lourdes Secondary School for four years until she left the school in 2014. In relation to the allegation, the background to her meeting with the Teacher accorded with what she had told Witness 1 at the interview. Witness 2 stated that she began to explain to the Teacher that complaints had been made and explained procedures. She reported that the Teacher became immediately hostile, sneering, dismissive, nasty and began to verbally attack her. She stated that this was not the first occasion she had had such a conversation with a staff member, but she was not expecting the level of hostility from the Teacher. She felt that during the meeting the Teacher did not treat her with respect, that he tried to attack her professional credibility and made her feel quite vulnerable. She referred to her meeting with the Depute Head Teacher. She also referred to her e-mail to HR later that evening. Thereafter, she referred to her later involvement with the Teacher when she was required to issue him with a precautionary suspension.

At the Full Hearing, Witness 2 stated that she would struggle to recall the actual words that the Teacher used and doubted that she could expand upon what she meant by the Teacher being immediately hostile. She stated that he adopted a verbal criticism to the effect that Witness 2 did not know what she was doing. She felt emotionally and physically on the back foot, and was taken aback by his response. She referred to his dismissive tone that she was doing something wrong. She stated that there was no shouting, but that it was the type of language used that made her feel under attack. She felt criticised and demeaned.

In cross-examination, Witness 2 was asked why no detail of the investigation had been given to the Teacher. She responded that she was following advice. The terms of the Glasgow City Council Code of Discipline for Teachers were put to Witness 2. She indicated that she had followed advice but could not remember where the advice had come from; it may well have been verbal. Witness 2 accepted that neither she nor the Teacher had shouted and accepted that he had not threatened her. She stated that she did feel intimidated and referred to the Teacher’s blustering. 
 

Teacher’s Evidence

The Teacher provided a witness statement in advance of the Hearing and also gave evidence during the Full Hearing. The Teacher took up his first teaching position as an English teacher in 1978. He remained in teaching roles until June 2000. He suffered serious ill-health in 2000 and had to take a five-year career break. He decided to return to teach on a long-term supply basis as opposed to accepting a full time teaching post. His first placement following return to work was in August 2005. Since that time, he had successfully completed numerous placements within secondary schools in North Lanarkshire and Glasgow City Council. This included a period of time at the Glasgow Autism Unit.

From 13 August 2013, the Teacher was placed at Lourdes High School on a temporary basis to cover the maternity leave of one of the teachers in the English Department.

Following his time at Lourdes High School, the Teacher had gone on to successfully complete other placements until June 2016. During his last placement he learned of the GTCS referral. This caused him considerable stress and he decided not to return to teaching until the conclusion of the regulatory process.

The Teacher started at Lourdes High School on 13 August 2013. On his first day, Colleague 2, Principal Teacher of English, showed him around the department. Whilst being introduced to the department, Witness 2 interrupted and asked why he was in the school. She told him that he had not been included in the list of 14 potential candidates that she had been given. She asked him what the contractual basis of his appointment was. She told him that she could not afford to have him if it was a long-term appointment. The Teacher was taken aback by Witness 2’s attitude and her brusque and unwelcoming manner.

The Teacher began teaching at the school and was responsible for classes ranging from S1 to S6.

The Teacher denied allegation (a). He described Pupil B’s behaviour as challenging and his attitude towards learning poor. It was difficult to engage him in learning. He was generally uninterested in participating in classroom activities. He had the reputation of being the tough child in the class and would often talk back when addressed. He commonly distracted his peers by chatting and swinging on his chair. The Teacher was worried that Pupil B would hurt himself. The Teacher reported that at the time of the allegation Pupil B was continually swinging on his chair in a horizontal fashion. The Teacher asked Pupil B repeatedly to refrain from doing that. Pupil B ignored the instructions. Pupil B eventually stopped and asked the Teacher if he could go to the toilet. The request was refused. Pupil B retorted that he wanted to go. The Teacher advised him that he would have to wait until the bell. Pupil B got up from his chair and headed towards the classroom door. The Teacher did not want him to leave the class. The Teacher was standing between Pupil B and the door. The Teacher raised his hands to cause an obstruction to prevent Pupil B from leaving. The Teacher denied having any physical contact with Pupil B.

The Teacher asked Colleague 2 for assistance with Pupil B’s behaviour. She attended the classroom, spoke with Pupil B and ultimately removed him from the Teacher’s class.

The Teacher advised that there was a full complement of pupils in that class at the beginning of term - easily 25 pupils. Pupil B sat on the Teacher’s right hand side in a group of six. The Teacher had sought to deal with Pupil B’s behaviour in a positive way by awarding him certificates.

In relation to allegation (b), the Teacher advised that the class was working on an exercise and he was circulating round to check whether anyone had any questions. He approached Pupil C. He thought she had her hand up to ask a question. Her desk was closest to the front of the classroom. She was sitting beside two of her friends. On approaching Pupil C, the Teacher noticed that three cigarettes were hanging out of the top pocket of her blouse. The Teacher was shocked. Pupil C’s classmates who were sitting beside her smiled at the Teacher. The Teacher felt that he had to do something and considered that it was his responsibility to confiscate the cigarettes as soon as possible. He removed the cigarettes from Pupil C’s top pocket. He wanted to remove them swiftly so as not to cause a scene. He did not want to reprimand Pupil C in front of classmates as he thought that was likely to embarrass her and disrupt the class.

The Teacher denied touching Pupil C’s clothing and denied having any physical contact with her when he removed the cigarettes. Before taking the cigarettes, the Teacher stated that he told Pupil C to see him at the end of the class. At the time, he considered that he had acted appropriately. Pupil C stayed behind at the end of class. He asked her what she thought her Pastoral Care teacher would say about her behaviour. She said that the Pastoral Care teacher knew that she smoked or words to that effect. The Teacher put the cigarettes at the other side of the computer and asked Pupil C to leave the classroom. The Teacher thought he had handled the matter discreetly and avoided causing Pupil C embarrassment whilst marking the seriousness of her conduct.

The Teacher recognised, in hindsight, that his actions were unacceptable. He should not have removed the cigarettes from Pupil C’s pocket. Instead, he should have asked the Pupil to remove them. He should have appreciated the sensitivities around removing the cigarettes himself. He did not consider that Pupil C looked alarmed or distressed when he removed the cigarettes nor during their conversation at the end of class.

The Teacher found the fact that three cigarettes were sticking out of Pupil C’s pocket to be comical and incongruous. He used his thumb and forefinger to remove the cigarettes. The Teacher indicated that he told the Depute Headteacher that he had put the cigarettes in the right hand drawer under the desk top.

The Teacher denied allegation (c). The Teacher indicated he received a telephone call from Witness 2 out of the blue. She asked him to attend at a meeting in her office. He was taken aback by the call. His contact with Witness 2 prior to that had been limited and unpleasant. His immediate reaction was to assume that she thought he had done something wrong.

When he attended at her office, she told him that she had received complaints about him. He asked her to provide details but she refused. He asked questions to establish what was to be investigated. He was shocked. He felt very confused. No pupil had complained to him. The meeting was completely unexpected and he felt very isolated, as he did not know what it was he was said to have done. This was the first time that he had been called into a Head Teacher’s office in his extensive career. He described Witness 2 as being evasive to him and unpleasant towards him. The Teacher referred to having received a letter setting out the allegations against him and to thereafter being invited for investigatory interview on 29 October 2013.

During the meeting with Witness 2, the Teacher described her as talking for a couple of minutes without interruption. He then asked her a question but Witness 2 was evasive. The Teacher spoke to her having a sealed envelope and to her speaking to the air. The Teacher stated that at that time he was floundering. The Teacher denied that he had “sneered” at Witness 2. He stated that he was shocked and stunned and was genuinely trying to figure out what the allegations related to. He denied being hostile or antagonistic.

The Teacher indicated that he had co-operated fully with the investigation carried out by his employer and was sanctioned at the end of that process. The Teacher stated that he was sorry for any distress he had caused to his pupils whilst teaching at Lourdes High School. The school was a difficult teaching environment as many pupils had complex learning needs and social backgrounds. He considered that at the time he was doing his best for those pupils, but following a period of reflection he accepted that he should have acted differently.

The Teacher hoped to return to the profession once the proceedings had concluded.

The Teacher was cross-examined. The Teacher was asked whether he had formed a negative impression of Witness 2 following his initial meeting with her. He denied that, but stated that he was just not made to feel welcome.

The Teacher was asked whether he had any physical contact with Pupil B. The Teacher did not think so but indicated that Pupil B may have tried to barge into him. It was suggested to the Teacher that he had pushed Pupil B as he had referred to Pupil B’s name during his meeting with Witness 2. The Teacher did not accept that. During questioning about the involvement of Colleague 2, the Teacher stated that there were other incidents with Pupil B. The Teacher was not clear which incident in particular he had required Colleague 2’s assistance for. It was suggested to the Teacher that he had been inconsistent.  The Teacher stated that he had been trying his best to assist the Panel but may be complicating things as he could not remember precisely all the details as the matters dated back to 2013.

The Teacher accepted that he should have asked for Pupil C’s permission to remove the cigarettes. The Teacher explained that, at the time, he did not ask for the permission as he wanted to deal with the matter discreetly. It was put to the Teacher that it was understandable for Pupil C to have got a fright as a result of what he did. The Teacher did not accept that. He said that the group carried on as normal and at the end Pupil C was very biddable and there was no distress whatsoever. The Teacher was asked whether the incident could have caused Pupil C distress, and he indicated that, in retrospect, he could have dealt with the incident differently. He accepted that his behaviour was unacceptable and that he should have recognised the sensitivities of the situation. He accepted that it was possible that Pupil C could have exhibited how she was feeling to friends after the incident.

In relation to the meeting with Witness 2, the Teacher accepted that his account of that incident provided in the investigatory interview was different from the account that he had provided in his witness statement. He put that down to a misunderstanding or misconstruction. The Teacher stated that he had not been as attentive at the time as he should have been. It was suggested to the Teacher that during the meeting he was unhappy, frustrated and upset. The Teacher responded that at the start of the meeting he was confused, alarmed, silent and respectful. He accepted that, during the course of the meeting, he had asked more than one question of Witness 2. He accepted he was trying to get answers and some transparency; however, he did not accept that this could be perceived as intimidatory and aggressive.

The Panel asked some questions of the Teacher. He was asked about his experience of child protection training. He responded that nothing came to mind regarding training. He indicated that everyone in school was aware of brochures or handouts on the subject and to treat pupils with respect. He did not recall information sharing about child protection but referred to being made aware how to protect and respect pupils from assemblies, handouts from the Depute Head Teacher, and meetings.

The Teacher’s Representative brought other aspects of the hearing papers to the attention of the Panel. In particular, the Teacher’s Representative highlighted a letter dated 26 June 2015 from the Senior HR Officer of Glasgow City Council to GTCS referring the Teacher to GTCS for consideration of misconduct. The Teacher’s Representative also referred to the note of a telephone call between the Senior HR Officer and GTCS on 21 July 2015, which outlined the discussion about the referral, in particular, the time lapse between the matter proceeding to a disciplinary hearing and to the referral to GTCS which was a period of over one year. This was explained during the telephone call as an oversight as the Council had thought that the referral had been made earlier but, due to an office move, paperwork had never been sent. The Teacher’s Representative then referred to a letter dated September 2015 from the Human Resources Manager of Glasgow City Council to GTCS seeking to withdraw the referral. Finally, the Representative referred to a letter dated 9 October 2015 from GTCS to the Human Resources Manager advising that the request to withdraw was not competent and that GTCS has a statutory role to fulfil, that the referral justifies an investigation that would progress until full determination.

Findings of Fact

 

The Panel gave careful consideration to all of the evidence presented and submissions made by the parties in making its findings of fact on the allegations.

The Panel had in mind that the burden of proof rested on the Presenting Officer and that the standard of proof required is that used in civil proceedings, namely the balance of probabilities.

The Panel found Witness 1 to be a credible and reliable witness. However, the Panel was not impressed by the manner in which her investigation had been carried out for reasons that will be referred to later.

The Panel found Witness 2 to be a credible and reliable witness. There was an internal consistency to her position between her interview and evidence before the Panel. The account she provided was also supported by other evidence.

The Panel had concerns about the Teacher’s evidence. He was consistent in his tone and did not display any agitation. However, he wandered and rambled during his response to certain questions. The Panel also felt that he prevaricated in response to difficult questions and tried to avoid answering them. He was also vague about certain details but very clear and certain about his position in relation to other questions.

Allegation (a)

There was no direct evidence in relation to this allegation. The accounts provided in the records of interviews within the investigation report contained inconsistencies. The investigation of this particular allegation was inadequate and flawed. It was inadequate, in the sense that there were potentially a number of other pupils who were present at the time the alleged incident took place who had not been interviewed. The interviews of the pupils were not extensive. In addition, the investigation was flawed. The timing of the interviews was odd. Pupil B’s account was obtained on 22 October 2013. Within the record of interview with Pupil B, no date of allegation was specified. In addition, Pupil B referred to Pupil D and other Pupils as potential witnesses. However, the account of Pupil D was obtained on 10 October 2013. The date of the allegation was specified in the preamble to the interview with Pupil D. Accordingly, Pupil B was interviewed after Pupil D was interviewed despite the fact Witness 1 said that the only account given by Pupil B was contained in her interview of him. Further, many of the questions posed in the interviews appeared to the Panel to be leading questions. Accordingly, the Panel was not satisfied with the evidential basis led in support of this allegation.

Allegation (b)

There was no direct evidence led in support of this allegation. Pupil C’s account in the record of her interview was detailed and had been obtained by largely open questions. Further, there were other accounts that supported and confirmed what Pupil C had said in her account. These other accounts included accounts of other pupils who were present at the time of the alleged incident, and an account of Pupil C’s Pastoral Care Teacher who had spoken to Pupil C about the alleged incident on a later date.

In addition, the Teacher had made a limited factual admission in relation to the allegation. Through his Representative, the Teacher had admitted that he had removed cigarettes from Pupil C’s top pocket. In evidence, the Teacher demonstrated to the Panel how he had twice used his thumb and forefinger in a scissor motion to remove the cigarettes from Pupil C’s pocket, but denied putting his hand into her pocket whilst doing so.

The Panel did not accept the Teacher’s explanation as to how he had recovered the cigarettes. The Panel preferred the accounts provided by Pupil C and other pupils. Accordingly, the Panel was satisfied that the Teacher had put his hand in the top pocket of Pupil C’s blouse and removed cigarettes.

The Panel considered the issue of whether Pupil C reacted to the incident. The allegation was worded that the incident had caused alarm and distress to Pupil C. Her own account was that the incident had caused her to be “upset” and to feel “uncomfortable”. Other persons had also referred to the way in which Pupil C had appeared to them after the incident and had provided a view as to what had caused that reaction.

The Teacher’s Representative cross-examined Witness 1 regarding Pupil C’s reaction to the incident as reported by various persons from whom accounts had been obtained. The Teacher’s position was that Pupil C had not reacted to the incident at the time, nor during the time she was in his presence after the incident. However, in cross-examination the Teacher conceded that it was possible that she may have reacted at a later time.

The Panel was satisfied that the incident had caused a reaction in Pupil C. The Panel acknowledged the location of the cigarettes on Pupil C’s person, the manner of their removal, and the fact that others were present and had witnessed the incident. The Panel concluded that the best evidence relating to Pupil C’s reaction to the incident was Pupil C herself. In the particular circumstances, the Panel was of the view that Pupil C’s feeling uncomfortable and upset by the incident was a perfectly natural reaction.

Accordingly, the Panel proposed to amend the allegation by deleting the words “alarm and distress” and to substitute those words with “to feel uncomfortable and upset”. The Panel’s view was that the amendment would accord with the evidence led on the matter. The Panel was not satisfied that the incident had caused Pupil C alarm and distress. Her reaction, albeit significant, had not been as severe as that.

The Legal Assessor advised the Panel that prior to making an amendment to the allegation the Panel must consider the terms of Rule 2.8.4 and also submissions from the Parties on the proposed amendment.

Allegation (c)

The Panel found Witness 2 to be a credible and reliable witness. They accepted her account of the incident and that she had been genuinely alarmed. However, the Panel noted that the Witness’ description of the incident in her account to Witness 1 and during her evidence was limited.

The Panel also had regard to the context of the incident. The Panel would have expected the Teacher to have been anxious and agitated having been called to attend at the Head Teacher’s office and having been advised that a disciplinary investigation was to commence. Understandably, the Teacher would want to know and would have asked what that related to.

The Panel accepted that the discussion that took place between the Teacher and Witness 2 would have been fraught, robust and have resulted in an unusual and uncomfortable atmosphere. Discussions of such a nature will be commonplace in schools throughout the country when difficult employment or managerial meetings take place. The Panel was not satisfied that the Teacher’s conduct went beyond that which the context would explain.

Accordingly, the Panel was not satisfied that allegation (c) had been established.

Prior to making its findings in fact, the Panel invited the Parties to make submissions in relation to its proposed amendment of allegation (b). The Presenting Officer did not object to the proposed amendment. He indicated that he could understand the amendment given that Pupil C had used those words. The Teacher’s Representative opposed the amendment and invited the Panel not to make it. In relation to Rule 2.8.4, the Teacher’s Representative questioned what ill the proposed amendment was seeking to undo. He submitted there was none. He submitted that either the evidence had met the allegation or it had not. There was no technical error and it was not required. The Teacher’s Representative also pointed to factors that identified that the amendment would result in injustice for the following reasons: 

       

Findings of Fact

The Panel gave careful consideration to all of the evidence presented and submissions made by the Parties in making its findings of fact on the allegations.

The Panel had in mind that the burden of proof rested on the Presenting Officer and that the standard of proof required is that used in civil proceedings, namely the balance of probabilities.

The Panel found Witness 1 to be a credible and reliable witness. However, the Panel was not impressed by the manner in which her investigation had been carried out for reasons that will be referred to later.

The Panel found Witness 2 to be a credible and reliable witness. There was an internal consistency to her position between her interview and evidence before the Panel. The account she provided was also supported by other evidence.

The Panel had concerns about the Teacher’s evidence. He was consistent in his tone and did not display any agitation. However, he wandered and rambled during his response to certain questions. The Panel also felt that he prevaricated in response to difficult questions and tried to avoid answering them. He was also vague about certain details but very clear and certain about his position in relation to other questions.

Allegation (a)

There was no direct evidence in relation to this allegation. The accounts provided in the records of interviews within the investigation report contained inconsistencies. The investigation of this particular allegation was inadequate and flawed. It was inadequate, in the sense that there were potentially a number of other pupils who were present at the time the alleged incident took place who had not been interviewed. The interviews of the pupils were not extensive. In addition, the investigation was flawed. The timing of the interviews was odd. Pupil B’s account was obtained on 22 October 2013. Within the record of interview with Pupil B, no date of allegation was specified. In addition, Pupil B referred to Pupil D and other Pupils as potential witnesses. However, the account of Pupil D was obtained on 10 October 2013. The date of the allegation was specified in the preamble to the interview with Pupil D. Accordingly, Pupil B was interviewed after Pupil D was interviewed despite the fact Witness 1 said that the only account given by Pupil B was contained in her interview of him. Further, many of the questions posed in the interviews appeared to the Panel to be leading questions. Accordingly, the Panel was not satisfied with the evidential basis led in support of this allegation.

Allegation (b)

There was no direct evidence led in support of this allegation. Pupil C’s account in the record of her interview was detailed and had been obtained by largely open questions. Further, there were other accounts that supported and confirmed what Pupil C had said in her account. These other accounts included accounts of other pupils who were present at the time of the alleged incident, and an account of Pupil C’s Pastoral Care Teacher who had spoken to Pupil C about the alleged incident on a later date.

In addition, the Teacher had made a limited factual admission in relation to the allegation. Through his Representative, the Teacher had admitted that he had removed cigarettes from Pupil C’s top pocket. In evidence, the Teacher demonstrated to the Panel how he had twice used his thumb and forefinger in a scissor motion to remove the cigarettes from Pupil C’s pocket, but denied putting his hand into her pocket whilst doing so.

The Panel did not accept the Teacher’s explanation as to how he had recovered the cigarettes. The Panel preferred the accounts provided by Pupil C and other pupils. Accordingly, the Panel was satisfied that the Teacher had put his hand in the top pocket of Pupil C’s blouse and removed cigarettes.

The Panel considered the issue of whether Pupil C reacted to the incident. The allegation was worded that the incident had caused alarm and distress to Pupil C. Her own account was that the incident had caused her to be “upset” and to feel “uncomfortable”. Other persons had also referred to the way in which Pupil C had appeared to them after the incident and had provided a view as to what had caused that reaction.

The Teacher’s Representative cross-examined Witness 1 regarding Pupil C’s reaction to the incident as reported by various persons from whom accounts had been obtained. The Teacher’s position was that Pupil C had not reacted to the incident at the time, nor during the time she was in his presence after the incident. However, in cross-examination the Teacher conceded that it was possible that she may have reacted at a later time.

The Panel was satisfied that the incident had caused a reaction in Pupil C. The Panel acknowledged the location of the cigarettes on Pupil C’s person, the manner of their removal, and the fact that others were present and had witnessed the incident. The Panel concluded that the best evidence relating to Pupil C’s reaction to the incident was Pupil C herself. In the particular circumstances, the Panel was of the view that Pupil C’s feeling uncomfortable and upset by the incident was a perfectly natural reaction.

Accordingly, the Panel proposed to amend the allegation by deleting the words “alarm and distress” and to substitute those words with “to feel uncomfortable and upset”. The Panel’s view was that the amendment would accord with the evidence led on the matter. The Panel was not satisfied that the incident had caused Pupil C alarm and distress. Her reaction, albeit significant, had not been as severe as that.

The Legal Assessor advised the Panel that prior to making an amendment to the allegation the Panel must consider the terms of Rule 2.8.4 and also submissions from the parties on the proposed amendment.

Allegation (c)

The Panel found Witness 2 to be a credible and reliable witness. They accepted her account of the incident and that she had been genuinely alarmed. However, the Panel noted that the Witness’ description of the incident in her account to Witness 1 and during her evidence was limited.

The Panel also had regard to the context of the incident. The Panel would have expected the Teacher to have been anxious and agitated having been called to attend at the Head Teacher’s office and having been advised that a disciplinary investigation was to commence. Understandably, the Teacher would want to know and would have asked what that related to.

The Panel accepted that the discussion that took place between the Teacher and Witness 2 would have been fraught, robust and have resulted in an unusual and uncomfortable atmosphere. Discussions of such a nature will be commonplace in schools throughout the country when difficult employment or managerial meetings take place. The Panel was not satisfied that the Teacher’s conduct went beyond that which the context would explain.

Accordingly, the Panel was not satisfied that allegation (c) had been established.

Prior to making its findings in fact, the Panel invited the parties to make submissions in relation to its proposed amendment of allegation (b). The Presenting Officer did not object to the proposed amendment. He indicated that he could understand the amendment given that Pupil C had used those words. The Teacher’s Representative opposed the amendment and invited the Panel not to make it. In relation to Rule 2.8.4, the Teacher’s Representative questioned what ill the proposed amendment was seeking to undo. He submitted there was none. He submitted that either the evidence had met the allegation or it had not. There was no technical error and it was not required. The Teacher’s Representative also pointed to factors that identified that the amendment would result in injustice for the following reasons: 

  • the amendment came late in the day and there had been no change in circumstances;
  • the Teacher’s Representative’s cross-examination of witnesses did not explore Pupil C being uncomfortable and what it meant and he had no means now to re-examine the witnesses;
  • the dictionary definition of the word “uncomfortable’ is vague and he may have taken a preliminary plea had it been used earlier in proceedings;
  • the Teacher’s Representative questioned whether the use of the word “uncomfortable” was significant enough and could amount to the basis of a finding of impairment at stage 2; and
  • it was difficult to establish what was meant by the word “upset” which has a number of different definitions, is inexact and in what way did it differ from the word “distress”.

The Teacher’s Representative submitted that the amendment was not required. Further, it was not fair and appropriate to amend in the way suggested by the Panel having regard to natural justice and the precepts of fairness.

The Panel reflected upon the parties’ further submissions and advice provided by the Legal Assessor. The Panel considered the terms of Rule 2.8.4. The Panel considered the allegation as originally framed, the evidence it had heard and its assessment of the evidence. The Panel concluded that the amendment was necessary in order to accurately reflect the Panel’s view of what had happened and the consequences of it. The allegation, as originally framed, referred to Pupil C’s reaction being more extensive than the Panel had determined. Accordingly, the amendment limited the reaction. The Panel considered that to amend the allegation by deleting the words “alarm and distress” without the substitution proposed would not have done justice to its assessment of the incident. The Panel’s view was that the gravamen of the allegation was the physical conduct of the Teacher putting his hand into Pupil C’s top pocket. However, the absence of any reference to Pupil C’s reaction would have been inappropriate and would fail to adequately reflect the true extent of the incident. The Panel had regard to the factors raised by the Teacher’s Representative. The Panel’s view was that the proposed amendment would not contravene natural justice or procedural fairness. The allegation, as originally framed, gave notice of a reaction by Pupil C. The reaction in the allegation, as originally framed, was more serious than that proposed by the Panel in the amendment. The particular words that the Panel proposed to include in the allegation were drawn from Pupil C’s record of interview. That interview had been provided to the Teacher as it was within the Presenting Officer’s Hearing Papers. The Teacher’s Representative had cross-examined Witness 1 in relation to the accounts provided by various persons during investigatory interviews regarding Pupil C’s reaction to the incident. The Teacher’s witness statement had been provided at a time when he was obviously aware of the content of the Presenting Officer’s Hearing Papers. Finally, the Teacher had given evidence in chief about Pupil C’s reaction to the incident and he stated he had observed no reaction.

Accordingly, the Panel decided to make the proposed amendment.

Thereafter, the Panel found allegation (a) not proved. The Panel found allegation (b), as amended, proved. The Panel found allegation (c) not proved.

Findings on Fitness to Teach

Given that the Panel found that some of the allegations were proved, the Panel invited the parties to lead evidence and make submissions in relation to the Teacher’s fitness to teach.

The Teacher’s Representative raised a preliminary matter and sought to add late papers. Those were an additional statement and a report prepared in relation to the Teacher. The Presenting Officer did not object to the late papers. The Panel allowed the late papers.

The Presenting Officer did not lead any additional evidence. He submitted that the Teacher’s conduct had fallen short of the standards expected of a registered teacher. The Presenting Officer stated that the conduct that the Panel had found proved was serious. He highlighted the behaviour had impacted upon Pupil C. He contended that there were aspects of the Teacher’s evidence that demonstrated a certain degree of lack of insight and remorse. He contended that there was little evidence of remediation by the Teacher, little evidence of what the Teacher had done since his position at Lourdes Secondary School, and no evidence of competence since.

The Teacher’s Representative referred to the late papers and other evidence led at the Full Hearing, but did not lead additional oral evidence at this stage. He submitted that the Teacher’s fitness to teach was not currently impaired and that the relevant parts of the Code of Professionalism and Conduct (COPAC) had not been breached. There had been no breach of the criminal law, no allegation of breach of honesty and integrity, and the conduct did not reflect poorly upon his position as a role model. It was submitted that a well-informed member of the public would consider the conduct against the background of an unblemished career. Further, there was no suggestion of sexual motivation or an intention to cause upset. The Teacher had attempted to deal with the situation without causing embarrassment. The Teacher’s Representative contended there had been no harm caused, no alarm or distress and no abuse of trust. The conduct was a single incident of poor judgement, with no pattern of behaviour and an unblemished record. Accordingly, there was no risk of repetition. It was submitted that the isolated incident would not reach the standard required for impairment in the fitness to teach context.

The Panel gave careful consideration to all of the evidence presented and submissions made by the parties in relation to the Teacher’s fitness to teach.  The Panel addressed the relevant considerations in relation to fitness to teach, as outlined in the GTCS Indicative Outcomes Guidance.

The Panel concluded that the Teacher’s conduct had fallen short of the standards expected of a registered teacher. The Panel was of the view that a Teacher should not behave in that manner towards a pupil. The Teacher invaded Pupil C’s personal space. He had breached Pupil C’s dignity. He should have asked Pupil C to hand over the cigarettes. His actions were inappropriate and unprofessional. The conduct also breached social norms. The Panel was also concerned by the manner in which the Teacher described the incident in his evidence. This demonstrated a lack of awareness of the sensitivities and risks associated with acting in that manner. The Panel was also concerned with the Teacher’s response to questioning in relation to Child Protection procedures.

The Panel concluded that the conduct had contravened part 1.2 of COPAC. The Teacher had failed to maintain proper boundaries, as he had not avoided improper contact with the pupil. The Panel was not satisfied that the conduct contravened part 1.3 of COPAC. Further, although the conduct did not indicate anything to do with honesty and integrity, the conduct had otherwise contravened part 1.4 of COPAC. The Panel was not satisfied that the conduct had contravened part 1.6 of COPAC. However, the Panel was satisfied that a reasonably informed member of the public would be concerned by that conduct.

The incident identified shortfalls in the Teacher’s behaviour and conduct. He had behaved inappropriately and improperly. He had failed to uphold professional standards and societal norms regarding a person’s dignity. He also failed to have an insight and an awareness that the conduct would have an impact upon the pupil.

However, the Panel was of the view that the shortfalls were remediable. The Panel was not satisfied that there was evidence that demonstrated the shortfalls had been remediated. Indeed, the Panel’s view was that the Teacher’s evidence was suggestive of an ongoing lack of insight and awareness of the consequences and risks associated with his actions. The Teacher had indicated that what he had admitted to doing was inappropriate. However, the Panel had found his conduct extended beyond that which he had admitted. Nevertheless, the Panel’s view was that there was a very low likelihood of recurrence. The Panel thought that the disciplinary and regulatory process would have been a very salutary experience. The incident had occurred many years ago and there had been no recurrence during the Teacher’s career, albeit limited, thereafter. Further, the Panel recognised the absence of any other concerns earlier in the Teacher’s career. The Panel viewed the conduct as a one-off incident.

The Panel considered the public interest that had been touched upon above. The Panel’s view was that a reasonably informed member of the public would consider the conduct to have been inappropriate and of moderate severity. However, the member of the public would also recognise that the incident had been a one off in the context of a lengthy career.

Accordingly, for the reasons set out above, the Panel determined that the Teacher’s conduct fell short of the standards expected of a registered teacher. However, the Panel was of the view that the Teacher’s fitness to teach is not currently impaired.