The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Full Hearing

5, 7, 8 and 9 February 2018

 Teacher  Janice MacNeill
 Registration Number 753840
 Registration category  Full: Primary and Secondary English
 Panel  John Kilpatrick (Convener), Patsy Rimell and David Tierney
 Legal Assessor  Gareth Jones
 Servicing Officer  Vivien Whyte/td>
 Presenting Officer  Gary Burton, Anderson Strathern LLP
 Respondent's representative  Jamie Foulis, Balfour & Manson LLP

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; and
  • the “Rules” (and any related expression) means the GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.
  • the "Register" means the GTCS register of teacher.

Preliminary issues

At the outset of the hearing, the Teacher’s representative made an unopposed application to submit late papers, pursuant to Rules 1.7.17 and 1.7.22 of the Rules. The late papers related to a number of signed testimonials from various individuals.

The Teacher’s representative explained that the same testimonials had been submitted at an earlier stage however none of them had been signed. It was submitted on that basis, that the Presenting Officer had been given fair notice of the information which the Teacher intended to rely on.

On the basis that the testimonials had already been lodged, albeit unsigned, and there being no objection to the late submission of the information by the Presenting Officer, the Panel allowed the Teacher’s representative to admit the evidence late.

Allegations

The following allegation was considered at the hearing:

  1. Between 26 October 2009 and 22 August 2013, being the Principal of Donaldson’s School, you did:

    1. fail to follow Donaldson’s Child Protection Guidelines after being informed by colleagues of an allegation of sexual misconduct committed by staff member A against the son of staff member B, fail to take the appropriate action to ensure that the allegation was investigated, a risk assessment was conducted and the allegation was reported to the Board of Governors [amendment];
    2. advise colleagues that action was being taken in relation to the matter at allegation 1a above when in fact you knew this was not correct and no action had been taken;
    3. fail to follow Donaldson’s Child Protection Guidelines after receiving a report that staff member A had posted inappropriate photographs on Facebook with a former service user, fail to take the appropriate action to ensure that the allegation was investigated, a risk assessment was conducted and the allegation was reported to Social Work [amendment];
    4. fail to follow Donaldson’s Child Protection Guidelines after being informed by a staff member that service users had engaged in a game of kissing and spin the bottle whilst on a weekend excursion run by staff member A;

Teacher's admissions

No admissions made.

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 Witness statement of Staff Member B (gave oral evidence at the hearing)
P2 Witness statement of Staff Member C (gave oral evidence at the hearing)
P3 Job description of Principal, Donaldson’s School
P4 Investigation Report by Investigating Officer, dated 21 November 2013 and appendices thereto
P5 Letter from Donaldson’s School to Janice MacNeill dated 21 February 2014 and appendices thereto

Teacher’s hearing papers

T1 Teacher’s Response Form
T2 Statement of the Teacher (draft) (gave oral evidence at the hearing)
T3 Statement of Staff Member D (approved) (gave oral evidence at the hearing)
T4-47 Character Statements and Testimonials
T48 Child Protection Policy for Donaldson's School
T49 Job description for Head Teacher at Donaldson's School
T50 Minutes of Strategic Management Team meetings at Donaldson's School for the period between 27 October 2009 to 29 January 2013
T51-71 Character Statements
T72-29 Further signed statements (late papers)

Joint papers

Joint Minute lodged on 7 February 2018 signed by Mr Burton and Mr Foulis.

Servicing Officer’s hearing papers

S1 Notice of hearing dated 8 January 2018
S2 Proof of service of notice – email delivery and read receipts

 

Summary of evidence

1. Presenting Officer’s evidence

Two witnesses were called by the Presenting Officer to give oral evidence to the Panel at the hearing and for whom witness statements had been lodged.  Those were Staff Member B and Staff Member C.  In addition, the Presenting Officer lodged the documents listed above (P3-P5).

Witness Staff Member B

The salient points of the evidence given by Staff Member B are outlined below.

Staff Member B has been employed by Donaldson’s School for a number of years.  She gave evidence regarding an incident between her youngest son and Staff Member A during a gathering at her house following her birthday party in October 2009.  The following day, her youngest son, who was 16 years old, disclosed that whilst he was waiting with Staff Member A outside the house for Staff Member A’s taxi, Staff Member A asked him if he wanted to go and stay at his (Staff Member A’s) hotel with him.  The son said that Staff Member A then grabbed his (the son’s) genitals.

Staff Member B’s son did not want to report the incident to the police.  However, Staff Member B said that she would have to report it to the school because Staff Member A was working with young vulnerable adults.  Staff Member A confirmed that her son had never been a pupil at the school.  Staff Member B met Staff Member A on the Monday following the incident at the school.  He initially denied his conduct but then admitted it and said that he had been drunk.
 
Staff Member B went to the Head Teacher’s office just after 9am and told her what had happened.  The Depute Head Teacher then entered the room and Staff Member B repeated the incident to her.  Staff Member B said that the Head Teacher was writing as she, Staff Member B, was speaking to the Depute Head Teacher.  She presumed that the Head Teacher was writing notes of what she was saying.  Staff Member B said that she wanted the Head Teacher to speak to the Principal (the Teacher).  The Head Teacher said that she would speak to the Teacher and to Human Resources.  Staff Member B confirmed that the only people she spoke to about the incident at the school that day were the Head Teacher and the Depute Head Teacher.

Staff Member B said that, after one week, she had not been contacted by the Head Teacher and, upon meeting her in the corridor, asked what was happening.  The Head Teacher said that she had spoken to the Teacher about it and to the Senior Management Team (SMT).  She had also spoken to the HR Officer and to Staff Member A.  However, the SMT had agreed, having taken advice from the HR Officer, that nothing could be done because Staff Member B’s son was over 16 years of age and was not a pupil.  For anything to happen, her son would have to go to the police.  Staff Member B confirmed that the members of SMT were the Teacher, Head Teacher, Depute Head Teacher and Head of Finance.  The HR Officer attended either to take minutes or to provide advice.  Staff Member B had spoken to the HR Officer about a week after the incident, who confirmed that the matter had been taken to the SMT but that they could not investigate Staff Member A. 

Staff Member B said that she decided not to pursue matters further because her son did not want the police involved.   She did not raise the incident with the Teacher directly and the Teacher never discussed it with her.  She had not heard the Teacher being told about the incident.

During her interview regarding the collective grievance investigation in 2013, Staff Member B said that she did not think that the incident regarding Staff Member A had been investigated properly.  The external Investigating Officer felt that matters should be reported to the police.  Staff Member B’s son was older by that point and agreed to cooperate with a police investigation.  Staff Member A was subsequently convicted of sexual assault and placed on the Sex Offender’s Register.  Staff Member B was upset by the way in which the incident was handled and would have expected a full child protection investigation to be conducted, given that Staff Member A was working with young vulnerable adults, including outwith the school at social events in the evening.

Staff Member B said that she thought she had a fairly good relationship with the Teacher, although she would go to the Head Teacher for work issues because she was her line manager.  Staff Member B would only see the Teacher if she came to her area of the school with visitors or in the corridors or dining room.  However, Staff Member B said that she was aware of the culture within the school that if anyone “went up against the SMT” they lost their job or the SMT would make things difficult for that person.  There was a high staff turnover.  Staff Member B said that if the Head Teacher had brought the matter to the attention of the Teacher then she would have expected there to have been a thorough investigation, particularly since the Teacher was the line manager of Staff Member A.  However, the Teacher had sent an email to all staff shortly after the incident regarding the fact that Staff Member A had won an award and was bringing a good name to the school and asked that all staff make a point of congratulating him if they saw him.    Staff Member B said that she knew then that nothing would be done.

Staff Member B was asked whether there would have been anything in the Child Protection policy that would have prevented the Teacher from giving her, Staff Member B, direct feedback about the incident.  Staff Member B replied that the only thing would have been if the Teacher had not been told about the incident.  However, Staff Member B had been assured by the Head Teacher and the HR Officer that it had been taken to the SMT.  Staff Member B said that just before the grievance, the Head Teacher was asked what the Teacher had said about the incident and the Head Teacher replied that the Teacher said “it’s just [Staff Member B], she’ll forget about it”.

Witness Staff Member C

The salient points of the evidence of Staff Member C are outlined below.

Staff Member C started working at Donaldson’s School in 2000 as Senior Manager Head of Childcare.  He said that his experience in the area of child protection was crucial to his appointment to the role.   He was part of the SMT, which, in 2009, consisted of him, the Teacher, the Head Teacher and the Head of Finance. He said in his statement that he had been made redundant in 2013, although accepted in his oral evidence that it could have been 2011.  He said that this was following a review of the residential provision within the school, which was instigated by the Teacher.  Thereafter, the Teacher said that Staff Member C’s redundancy was appropriate, despite the fact that his role was retained after his redundancy.  He described his working relationship with the Teacher as “fair to middling”.  He had preferred the management style of the Teacher’s predecessor.

Staff Member C stated that, whilst at the school, he drafted a set of child protection guidelines, which set out the process to be followed following any report of a child protection issue at the school.  It states that any member of staff who is made aware of a child protection issue must complete a CP1 form and provide this to the Designated Member of Staff (DMS), which was defined as the Principal or, in whose absence, the most appropriate member of the SMT.  Thereafter, a DMS Team Meeting must be convened within 24 hours, including at least two of the Head Teacher, Depute Head Teacher and Head of Care, who would discuss the matter and take appropriate action.  The policy stated that the DMS would report briefly to the Convener of the Board of Governors.
 
Staff Member C said that in around October 2009, a Senior Residential Care Worker told him about a child protection issue involving Staff Member A allegedly sexually assaulting the son of Staff Member B.  He said in his statement that an SMT meeting was scheduled for the same day, although in cross examination he said that he could not be sure about the date of the meeting.  When Staff Member C joined the meeting late, he handed a completed CP1 form to the Teacher, who said “yes, we know about this and it is being dealt with”.  The impression he got was that the Teacher had heard enough about the matter already and that the disclosure of it had not been well received by her.  He was clear that it had been spoken about prior to his arrival at the meeting.  There was no discussion regarding a referral to social work/police or notifying the Board of Governors.  He confirmed in his oral evidence that he could not remember what he said to the Teacher when handing over the form.  He did not discuss the matter with the Head Teacher.

Staff Member C disagreed with the Teacher’s representative that child protection matters were routinely discussed at SMT meetings and said that the Teacher had decided that it would be removed as a standing item.

Staff Member C’s view was that if the Head Teacher told the Teacher about the allegation then it became the responsibility of the Teacher to deal with it.  He would have expected her to appoint an Investigating Officer to consider the allegation and compile the necessary evidence.

Staff Member C said that he did not hear anything for 1-2 weeks.  He specifically went to the Teacher’s office to ask her about it and she said “it is being dealt with”.  She was very frosty with him and he got the impression that she did not want him involved.  The allegation was never discussed again at the SMT meetings.  He did not know whether or not an investigation was ever instructed or carried out.

Staff Member C said that he had completed and passed several other CP1 forms regarding child protection matters to the Teacher, in 2009.  He had been advised by a member of staff that Staff Member A had uploaded several images to his Facebook page showing him and a former service user on holiday together.  The former service user suffered from profound learning difficulties and had difficulties with his sexuality; he was exceptionally vulnerable.  Concerned with the appropriateness of the photographs, Staff Member C said that he completed a CP1 form and passed this to the Teacher in her office.  Her response was slightly more favourable this time and she said that it would be dealt with.  He kept a copy of the CP1 form in his file.  His understanding was that the file for all CP1 forms completed in 2009 had not been found at Donaldson’s.   However, when asked whether this particular incident actually happened in 2011, he said that he could not remember.  He appeared to accept that there would be no good reason why a form completed after 2009 could not be found.

Staff Member C said that, in 2009, a current service user told him that Staff Member A had allowed service users to play spin the bottle on a weekend excursion.  He accepted that it appeared from the paperwork before the Panel that this incident also happened in 2011 and not 2009.  Although not on the same level of seriousness, Staff Member C considered this disclosure to be a child protection matter and so completed and passed a CP1 form to the Teacher.  He was not clear where he handed it to her, he thought it might have been in her office but was clear that it was the Teacher that he handed the form to.  As far as he was aware, the guidelines were not followed and no investigation was conducted.

On being asked what his reaction was to the fact that the Teacher denied being made aware of the incident regarding Staff Member B’s son and also the incident regarding the former service user, Staff Member C said that there should have been a well established paper trail and vigorous recording process.  Given that the paperwork had disappeared, it was now difficult to follow the paper trail.  On being asked what his reaction was to the fact that the Teacher denied being made aware of the photographs, Staff Member C said that he was flabbergasted and disappointed but not surprised.  There was no doubt in his mind that he made the Teacher aware of his completed forms and that other people were aware that he had spoken to the Teacher.  He confirmed that he had not approached the Board of Governors about these incidents; he had not known what actions the Teacher had taken.  He confirmed that he attended Board meetings and thought this was around four times per year.

Staff Member C said that after the Teacher was appointed as Principal, note taking at SMT meetings was very erratic; they were abbreviated notes.  All members of the SMT would be given a copy of the minutes, including him.

2. Teacher’s evidence

Four witnesses were called by the Teacher’s representative to give oral evidence to the Panel at the hearing.  Copies of their statements had also been lodged and were before the Panel. The witnesses called were the Teacher, Staff Member D, Witness SM and Witness JC. In addition, the Teacher’s representative lodged the documents listed above (T1 and T4-71).

Witness: The Teacher

The salient parts of the evidence given by the Teacher are summarised below.

The Teacher is now retired but practiced in education for almost 38 years. She had dedicated the majority of that time to working with vulnerable young people including those that suffer with severe disabilities and/or mental health difficulties. Latterly, she worked as Principal at Donaldson’s School.

The Teacher explained that she was part of the SMT at Donaldson’s along with a number of other individuals, one of whom was the Head Teacher. All of the individuals who were part of the management structure had independent access to the Board of Governors and could raise issues with them if they wanted to.

In light of her significant experience of working with vulnerable children, the Teacher said that she was well aware of what constituted a child protection issue and of what needed to be done in the event that such an issue was raised. However, when she was appointed as Principal Teacher, the Chair of the Board of Governors made it clear that it was the Board’s expectation that she would “project manage” the building of the new school in Linlithgow and the closing down of the old building in Edinburgh. As a consequence, the day to day running of the school also became the responsibility of senior members of staff in particular the Head Teacher.

The Teacher explained that between 2009 to 2013, it was the Head Teacher that assumed the role of designated member of staff (DMS) to whom people would go to in order to raise a child protection issue. The Head Teacher had assumed responsibility for that role because she was “adamant” that she was best placed to assess any issue relating to a child’s educational, social and home life. The Teacher further explained that she had no difficulty relinquishing the role of DMS to the Head Teacher because she (the Teacher) was often off site monitoring the building of the new school. Furthermore, despite the child protection policy that existed at the time, referring to the DMS as the Principal, all members of staff at the school and the Education Care Committee were aware that the Head Teacher had assumed that role. According to the Teacher, that is why the later policy (a copy of which is contained within the Teacher’s hearing papers) refers to the DMS as the Head Teacher.

In relation to the allegation concerning the son of Staff Member B, the Teacher indicated in both her statement and oral evidence that she had not been informed by the Head Teacher in 2009 or by anyone else, that Staff Member A had sexually assaulted the son of Staff Member B. She also claimed to have no recollection of a CP1 form being handed to her by Staff Member C. She maintained instead that she was first told about the allegation in May 2013 by Staff Member D, who at that time had only just moved into the post of HR Manager for the Donaldson’s Trust. Staff Member D told her that he thought it appropriate to report the matter to her because he had been advised by the previous HR Manager that rumours were circulating around the school about Staff Member A engaging in improper conduct towards the son of Staff Member B.

The Teacher explained that after the matter was reported to her, she agreed with Staff Member D that the Head Teacher should be notified because under the school’s revised child protection policy it was the Head Teacher that was primarily responsible for investigating and addressing child protection matters. It was the Teacher’s understanding that the Head Teacher confirmed to Staff Member D that she had been aware of the incident from around October 2009 but chose not to do anything about it because she considered that the child protection policy did not apply, as the son of Staff Member B was over 16 and not a pupil at the school.

The Teacher was adamant that if she had been made aware of the incident in 2009 she would have taken steps to notify the Board and sought advice from the lawyers that worked for the Trust. She would have also taken steps to inform the Care Commission, the school’s link to the Scottish government and she would have instructed the Head Teacher to arrange for a risk assessment to be carried out. She said that she was further prevented from investigating the matter in 2013 because in June 2013 she was notified by the Board of Governors that a collective grievance had been submitted about her and was shortly afterwards removed from the role of investigating officer.

When asked specifically whether she considered that the school’s child protection policy covered the allegation concerning Staff Member B’s son, whilst the Teacher initially indicated that she did not think it did because he was not a pupil at the school at the time, she was clear in her evidence that the matter ought to have been thoroughly investigated given that the allegation involved a vulnerable young person being sexually assaulted by a Teacher that worked at the school.

In the course of her evidence, the Teacher was referred to handwritten notes that the Head Teacher had produced at the Teacher’s earlier disciplinary hearing. The notes were produced by the Head Teacher in support of her claim that she had discussed the incident involving Staff Member’s B’s son, with the Teacher in 2009. However, the Teacher maintained her position that no such discussion had ever taken place and said that in all the years that she had worked with the Head Teacher, she (the Head Teacher) had never had a notebook.

The Teacher was also referred by the Presenting Officer to other sources of information that suggested that the Depute Head Teacher had been told by the Head Teacher in 2009 about the incident involving Staff Member B’s son. The Teacher agreed that that appeared to be the case but indicated that whilst the Head Teacher, Staff Member C and the Depute Head Teacher had all been aware of the incident, she had not been told about it.

With regard to the allegation concerning the posting of inappropriate photographs by Staff Member A, the Teacher said that she was not told about the existence of these photographs until she had a meeting with the School Board on 16 July 2013. She had been aware that, approximately two years before, Staff Member A went on holiday with the former pupil because he (Staff Member A) had been paid to act as a befriender and mentor. However, she had never been advised of anything untoward and denied receiving a CP1 form about the incident from Staff Member C.

Whilst the Teacher indicated her view that the incident involving the photographs would not have been covered by the school’s child protection policy because the individual in question was not a service user at the time, she was once again clear that the matter should have been properly investigated and referred on to the local authority because it involved a vulnerable person who at the time was in local authority care.

In relation to the allegation that service users had engaged in a game of kissing and spin the bottle whilst on a weekend excursion run by staff member A, it was once again the Teacher’s position that she had not been notified of this incident. She was clear that the matter was a child protection issue and was covered by the school’s child protection policy because the incident involved a vulnerable young service user and allegedly took place on school grounds at a time when Staff Member A was responsible for his care. However, as with the other allegations, the Teacher maintained that at no stage did Staff Member C provide her with a CP1 form in relation to the incident. Had he done so, she was clear that she would have appointed an investigating officer and instructed a full investigation as well as taken advice from lawyers working for the Trust.

When asked about her relationship with Staff Member C with a view to explaining why he might not be telling the truth, the Teacher said that she found him to be “challenging and difficult to manage” and described him as “not a team player.” He was someone that did not align himself with SMT decisions and was only interested in the area of the school that he worked in.  He was also very resistant to the changes that the school was trying to implement.

When asked about the circumstances which led to Staff Member C’s redundancy, the Teacher explained that she submitted a report to the Board expressing her concerns about how the Lodge was being managed and asking for a review of the management structure. Ultimately, the restructuring that followed led to Staff Member C being made redundant.

Witness: Staff Member D

The salient parts of the evidence given by Staff Member D are summarised below.

The witness worked with the Teacher from 2006 to 2008 and then again from 2012 to 2013 when he was employed as the Head of Human Resources for Donaldson’s School and latterly as Head of Projects.

In both his statement and oral evidence, Staff Member D commended what he described as the Teacher’s “professional attitude” and said that she “worked constantly for the benefit of the pupils at the establishment.”

According to Staff Member D, the Teacher was left to manage the school’s move from Edinburgh to Linlithgow and she encountered a great deal of resistance from many staff members, who were unhappy about the move and reluctant to embrace change. He described that, on occasion, this led to the Teacher being personally insulted however she remained professional throughout and continued to perform the difficult task allocated to her by the governors. She encountered the same kind of difficulties and responded in the same way when she was tasked by the governors to undertake a school wide review of costs and structuring. The good work that she had done was ultimately recognised by the governors in 2013, when the Teacher received a significant salary increase.

The witness confirmed that he informed the Teacher of the allegation concerning the son of Staff Member B in 2013 after the matter was raised by another staff member – OL – who indicated that she had also been aware of the allegation in 2009.  He said that he got the “clear impression” that the Teacher was “truly surprised and shocked” at the news to the extent that he firmly believed that she had no prior knowledge of the allegation. He said that he was reinforced in that view because, in his experience, the Teacher had always been very clear about her professional responsibilities and had always acted swiftly and decisively in dealing with matters that required action.

On speaking to the Teacher about the allegation it was agreed that he (Staff Member D) would speak directly with the Head Teacher as it was the Head Teacher that was primarily responsible for child protection matters. After obtaining the Head Teacher’s preliminary view on the matter it was anticipated that due process would follow and that eventually, the Teacher would be tasked with investigating the matter.

On speaking to the Head Teacher she confirmed that she had been advised of the incident in 2009 but she considered that because the incident took place outside of the school it was not a school matter. According to Staff Member D, the Head Teacher was clear that despite knowing about the allegation she elected not to do anything about it and he was equally clear under cross-examination that at no stage did she indicate that she had discussed the matter with the Teacher, either formally or informally. From his conversation with the Head Teacher it was Staff Member D’s impression that, at the time the allegation was reported to the Head Teacher, she believed it was just “school chitchat” taking place after a party. Staff Member D was also clear under cross-examination that, when discussing the matter with the Head Teacher, at no stage did she make any reference to any notes that she made about the allegation.

The witness also said that throughout his time working at Donaldson’s, the SMT meetings had always had a standing item on the agenda for child protection and that there was no indication in any of the notes taken at these meetings of the incident having been raised in 2009. There were also no notes of the incident having been raised between 2009 and when he (Staff Member D) found out about the incident in 2013.

He was clear in his view, which was based on his dealings with the Teacher over a significant period of time, that had she been aware of the matter in 2009, she would have taken appropriate action and “rigorously” investigated it.

Witness: SM

The salient parts of the evidence given by SM can be summarised as follows.

The witness and the Teacher have been friends for close to 40 years. They first met through work during the period 1978 to 1983, when SM worked as a Speech and Language Therapist at Murrayfield School, in a unit for children with cerebral palsy and severe and complex disabilities. The Teacher also worked at the school and they would have regular contact as many of the children in her class were receiving therapy.

The witness described the Teacher as a “fantastic teacher” during the time that they worked together and in her statement gave many examples of why she formed that view. However, it was apparent from further questioning that SM had not worked with the Teacher since 1983 and she confirmed during cross-examination that she had never worked at Donaldson’s school.

Witness: JC

The salient parts of the evidence given by JC can be summarised as follows:

The witness is retired but formerly worked at Donaldson’s as a Board member and as Convener of the Board. He completed his tenure at the end of 2008 but he described that during his time at the school he had “the utmost confidence” in the Teacher, who he considered to be a leader that was capable of managing and implementing change.

In his statement, he gave a number of examples of the work that the Teacher had done for the better in the school, which he said was in need of “major surgery.” He described that implementing change often involved “going out on a limb” and “ruffling feathers in an organisation known for its ‘reactionary culture’”. However, the Teacher’s “positive influence and outlook” ensured that very good results were achieved in the joint HMIE / Care Commission inspection and that the school’s business strategy was positively recognised.

During further questioning, in keeping with the information he had provided in his statement, JC stated that it would be “out of character” for the Teacher not to face up to difficulties because that was her way of working. He said that he always felt well informed by the Teacher about any difficulties that did arise and that he would have no hesitation in appointing her to the same role again.

During cross-examination however, JC indicated that based on his experience of being on the Board, he would have expected the Teacher to have been aware if an allegation had been made against a staff member.

In relation to Staff Member C, JC corroborated the account given by the Teacher that he was someone who was resistant to change and described him as one of the more “reactionary forces” working at the school. 

 

Documentary evidence

In addition to the oral evidence, the Panel had careful regard to all of the documents contained within the Presenting Officer’s papers and the Teacher’s papers.

In his closing submissions the Teacher’s representative drew the Panel’s attention to a large number of testimonials from various individuals that were contained within the Teacher’s papers. All of these individuals attested to the Teacher’s good character, in similar terms to the evidence given by both Staff Member D and the witness JC. As with all of the other documentary evidence submitted, the Panel carefully read all of the testimonials before making any findings in fact. 

The Panel also had careful regard to the terms of the Joint Minute that had been agreed between the parties.

Application to amend allegations 1(a) and 1(c)

At the conclusion of the evidence led on behalf of the Teacher, the Presenting Officer made an application to amend allegations 1(a) and 1(c), pursuant to Rule 2.8.4 of the Rules. This Rule states that: at any stage before making its findings in fact, the Panel may amend the allegations to be considered, unless, having regard to the merits of the case and the fairness of the proceedings, the Panel considers that the required amendment cannot be made without injustice.

The Presenting Officer sought to amend allegations 1(a) and 1(c) to the following:

  1.  Between 26 October 2009 and 22 August 2013, being the Principal of Donaldson's School, you did:
    (a) after being informed by colleagues of an allegation of sexual misconduct committed by staff member A against the son of staff member B, fail to take the appropriate action to ensure that the allegation was investigated, a risk assessment was conducted and the allegation was resported to the Board of Governors;
    (c) after receiving a report that staff member A had posted inappropriate photographs on Facebook with a former service user, fail to take the appropriate action to ensure that the allegation was investigated, a risk assessment was conducted and the allegation was reported to Social Work.

The Presenting Officer submitted that the proposed amendments reflected the Teacher’s own evidence about what she would have been done had the matters been brought to her attention and eliminated the need for the Panel to interpret the school’s child protection policy, which on one view, was poorly drafted. It was also submitted that there would be no prejudice to the Teacher by allowing the amendments because her defence to both allegations was that she had no knowledge of either incident. That would remain the case.

In relation to the timing of the application, the Presenting Officer explained that the GTCS had decided to frame the allegations so as to include reference to the child protection policy because, in his witness statement, Staff Member C expressed the view that the incidents described in allegations 1(a) and (c) were covered by the school’s child protection policy. In his oral evidence however, Staff Member C seemed to renege on that view. Furthermore, the Presenting Officer indicated that he had given notice to the Teacher’s representative that he intended to amend the allegations in this way, prior to the conclusion of the Teacher’s evidence, so that he (the Teacher’s representative) had an opportunity to deal with any issue arising during his questioning of the Teacher.

In short, it was submitted that no injustice would follow from the proposed amendments to the allegations and that the application to amend was fair in all the circumstances.

In response, the Teacher’s representative indicated that he opposed the application to amend, on the basis that the proposed amendments changed a fundamental part of the allegations, namely the standard that the Teacher was expected to meet. Due to the late timing of the application it was submitted that the Teacher had not received fair notice of the allegations being made against her.

During further questioning by the Panel however, the Teacher’s representative conceded that he would not have prepared the Teacher’s case differently or asked different questions of the witnesses, including the Teacher, had he known about the proposed amendments in advance of the hearing. He also acknowledged that the Teacher’s defence to the allegations, namely that she did not know about any of the incidents, was equally applicable to the proposed amended allegations. Furthermore, in relation to the timing of the application, the Teacher’s representative confirmed that the Presenting Officer notified him prior to the completion of the Teacher’s evidence, that he intended to apply to amend the allegations in this way.

Having heard submissions from both parties, the Panel received advice from the Legal Assessor before retiring to consider the application.

Having carefully considered the application, the Panel was satisfied, for all the reasons given by the Presenting Officer, that no injustice would result from the allegations being amended in the way proposed. The Panel therefore allowed the application. 

Findings and reasons

The Panel gave careful consideration to all of the evidence presented and the 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 began its assessment of the evidence by considering the credibility and reliability of the witnesses that had been called at the hearing, including the Teacher.

Witness: Staff Member B

The Panel considered that Staff Member B was a credible and reliable witness. She gave evidence in a straightforward and, in the Panel’s view, honest way. She was understandably upset when discussing the incident involving her son, which led to Staff Member A being successfully prosecuted for sexual assault.

The Panel also had no reason to disbelieve the evidence of Staff Member B that following the incident she discussed the matter with the Head Teacher and OL. The Panel accepted her evidence that she was told by the Head Teacher, that she (the Head Teacher) had liaised with the SMT (including the Teacher) and that nothing could be done because her son was over 16 and not a pupil at the school. The Panel, however, noted the concession made by Staff Member B that she (Staff Member B) had never discussed the incident with the Teacher, either formally or informally.

Witness: Staff Member C

After carefully reviewing the evidence given by Staff Member C, for the following reasons the Panel concluded that he was not a wholly credible and reliable witness. 

Staff Member C was often evasive when answering questions, particularly when challenged about the evidence that he had given. On more than one occasion a question had to be repeated and Staff Member C had to be reminded to focus on the question that was being asked.

It was clear from his evidence and the way he presented that Staff Member C had a longstanding dislike for the Teacher, which the Panel considered was due, in part, to the changes that the Teacher had implemented at the school and the fact that, following the restructuring of the school, Staff Member C had been made redundant. The Teacher’s evidence that Staff Member C was resistant to change and resentful of her was also supported by the witnesses called by the Teacher, most notably JC, who described Staff Member C as one of the more “reactionary forces” working at the school.

In short, the Panel considered that the evidence of Staff Member C was tainted by his dislike of the Teacher.

The Panel also noted that none of the CP1 forms that Staff Member C claimed to have created had been located and that no satisfactory explanation was uncovered at the disciplinary hearing for why that was the case. The same was true of the present hearing.

Not only that but when Staff Member C was referred to the paperwork, he accepted that the incidents described in allegations 1(c) and 1(d) appeared to have happened in 2011 and not in 2009 as he said in his oral evidence. He also accepted that there would be no good reason why a CP1 form completed after 2009 could not be found.

The totality of the factors mentioned above meant that the Panel could attach little weight to the evidence given by Staff Member C when considering whether the allegations were proved to the required standard.

Witness: The Teacher

The Panel considered that the Teacher was a credible and reliable witness. She had been consistent in her account of events between her statement and oral evidence and she answered the questions that were asked of her directly and fully.

Her account that she was regularly off-site and less responsible for the day to day running of the school was supported by other witnesses, in particular Staff Member D. Furthermore, her account that it was the Head Teacher that assumed the role of DMS to whom people would go to in order to raise a child protection issue, was supported by the revised child protection policy, a copy of which was contained within the Teacher’s papers.

Both Staff Member D and JC were also able to attest to the Teacher’s good character, as were the other individuals that provided testimonials. It was clear from their evidence that the Teacher was someone who would not shy away from an important issue. The evidence therefore enhanced the credibility of the Teacher’s account that she would not have ignored any of the incidents, had she known about them at the time.

Witness: SM

The Panel considered that SM was a credible and reliable witness but it was clear from her evidence that she had not worked with the Teacher for many years and that she had never worked at Donaldson’s. The Panel therefore derived little assistance from the evidence that she gave.

Witnesses: Staff Member D and Witness JC

The Panel considered that both of these witnesses gave credible and reliable evidence. Once again they answered questions in a straightforward and, in the Panel’s view, honest way.

They had both known the Teacher for some considerable time and were, as previously discussed, able to attest to her good character. Furthermore, their evidence about the good work that the Teacher had done for the school, the positive changes that she had helped implement and the resistance that she had encountered by many individuals that were reluctant to change, was not challenged by the Presenting Officer during cross-examination. Neither was the conversation that Staff Member D described having with the Head Teacher when he raised with her the incident involving Staff Member B’s son.

Having carried out an assessment of the credibility and reliability of each of the witnesses, including the Teacher, the Panel considered whether any of the allegations were proved.

The central issue in relation each of the allegations that the Panel required to resolve was whether the Teacher knew of the incidents described, at the relevant time. If she did, it was common ground between the parties that she ought to have acted in the way described in each of the allegations.

Having considered all of the evidence, the Panel arrived at the following conclusions.

Allegation 1(a) NOT PROVED

It was clear that, in seeking to prove this allegation, the Presenting Officer relied heavily on the evidence of Staff Member C. However, for all of the reasons previously described, the Panel concluded that he was not a wholly credible and reliable witness.

No CP1 forms had been produced in support of his account and the Panel considered that the suggestion by him that these forms had either gone missing or had been deliberately destroyed, was entirely unsupported and therefore speculative. Staff Member C had also given an inconsistent account as to when the CP1 forms had been created in relation to the incidents described in allegations 1(c) and 1(d).

Furthermore, as well as no CP1 forms being produced, it was a matter of agreement between the parties that there was no mention in any of minutes of the incident involving Staff Member B’s son being raised at an SMT meeting.

In summary, for all of the reasons given above, the Panel could not be satisfied that CP1 forms, if they had been created, were submitted to the Teacher or that the incident had been discussed with her at an SMT meeting.

The Panel next considered the evidence relating to the Head Teacher and the conversations she claimed to have had with the Teacher about the incident.

Whilst the Panel acknowledged that it was the position of the Head Teacher that she had spoken directly with the Teacher about the incident, as described by Staff Member B in her oral evidence, the Panel noted that all of the evidence presented by the GTCS concerning conversations between the Head Teacher and the Teacher was hearsay.

The Panel did observe that hearsay evidence is admissible in these proceedings. However, the Panel was nevertheless surprised that the Head Teacher had not been called to give evidence or asked to provide a statement. She was clearly a potentially very important witness. The fact that she had not been called or provided a statement affected the weight that the Panel could attach to what evidence there was of the discussions that she had with the Teacher. For the same reasons the Panel also considered that there was a lack of evidence to validate the notes that the Head Teacher produced of her discussions with the Teacher.

In contrast, the Panel heard directly from the Teacher and, for the reasons previously given, found her to be a credible and reliable witness.

In all the circumstances the Panel preferred the evidence of the Teacher.

That being the case, the Panel concluded that the allegation was not proved.

Allegation 1(b) NOT PROVED

It was common ground between the parties that if the Panel found allegation 1(a) not proved it would have to reach the same conclusion in respect of allegation 1(b). The Panel therefore found this allegation not proved.

Allegations 1(c) and 1(d) NOT PROVED

As conceded by the Presenting Officer in his closing submissions, the Panel could only find these allegations proved if it accepted the evidence of Staff Member C. The Presenting Officer relied on the evidence of Staff Member C that he provided the Teacher with a CP1 form for each of the incidents at the relevant time, as proof that she was made aware of the incidents.

However, as previously discussed, the Panel could not be satisfied that Staff Member C was a credible and reliable witness and no CP1 forms had been lodged in support of his account. He had also been inconsistent in his account as to when the CP1 forms had been created in relation to both of the incidents described in the allegations.

That being the case, the Panel found both allegations 1(c) and 1(d) not proved. 

Given that the Panel found none of the allegations proved, the proceedings were concluded.