The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Full Hearing

21, 23 & 24 November 2017

 Teacher  Katie Berker (present by video link>
Registration Number 921696
 Registration category  Secondary - Drama
 Panel  John Kilpatrick (Convener), Patsy Rimell, Peter Hempsey
 Legal Assessor  Una Doherty
 Servicing Officer  Dani Tovey
 Presenting Officer  Gary Burton, Anderson Stathern
 Respondent's representative  Jamie Foulis, Balfour&Manson

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 teachers

Preliminary issues

Amendment of the allegation

Mr Burton pointed out two minor typing errors in the Notice of Full Hearing in allegation 1(b) and 1(c) where “53” should read “S3”. He asked the Panel to amend the allegation in accordance with Rule 2.8.4. Mr Foulis confirmed that he was content that the amendment could be made.

It was clear that these were only typing errors and the Panel agreed to amend allegation 1(b) and 1(c).

Late papers

Mr Foulis asked the Panel to admit two late documents: a summary of the Teacher’s position in response to the allegations and copies of the work undertaken by the pupils as referred to in the Teacher’s statement.

Mr Burton had no objection to the documents being admitted late.

The Panel agreed to admit the late documents as they were relevant to the matters being considered and no unfairness would be caused by them being admitted.

Use of electronic communications

A previous Panel had determined that the Teacher could participate in the hearing by video link and Witness 4 by teleconference.

In addition, Mr Foulis advised the Panel that Witness 3 was unable to attend the hearing in person but would be able to take part by teleconference. Mr Burton was content to proceed on that basis.

Having regard to Rule 1.7.6, the Panel considered it just and equitable to allow Witness 3 to give evidence by teleconference in order to enable his participation in the hearing. Everyone in attendance would be able to hear his evidence and it would be possible for the parties and Panel to question the witness if required.

Privacy

Mr Foulis indicated that pupil names should not be reported should they be referred to in oral evidence. The Convener repeated a request to the press in attendance to refrain from reporting pupil names or other details that may identify pupils.

Mr Foulis also requested that chapters of evidence regarding the Teacher’s health be heard in private. He indicated that he would assist the Panel in conducting the hearing by indicating when evidence regarding the Teacher’s health was going to be led.

Mr Burton agreed that evidence regarding health would usually be heard in private and was content to proceed on that basis. He would also assist the Panel by indicating when health matters were to be raised.

The Panel had regard to Rule 1.7.3 and the GTCS Conducting Hearings in Private Practice Statement, and directed that any part of the hearing relating to the Teacher’s health be conducted in private. The Teacher’s right to privacy in relation to personal information about her health outweighed the interests in favour of holding these parts of the hearing in public.

Allegations

The following allegation(s) were considered at the hearing:

  1. On 14 January 2016, whilst employed by Aberdeenshire Council as a teacher at School 1, you did:
    1. Fail to follow School 1’s policy on a restorative approach to support effective teaching and learning
    2. Instruct a 53 S3 pupil to give another pupil a “Chinese burn”
    3. Use inappropriate language towards a 53 S3 pupil and in particular use the term “little shit” in response to the pupil’s behaviour during the lesson.
  2. On 10 March 2016, whilst employed by Aberdeenshire Council as a teacher at School 1 you did use inappropriate language towards a colleague, Colleague 1, in that you did say “you put up your fucking hand” or words to that effect.

And in light of the above, it is alleged that your fitness to teach is impaired and you are unfit to teach, as a result of breaching Parts 1.2, 1.3, 1.4, 1.6 and 4.1 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct.

Teacher’s admissions

At the start of the hearing, via her representative and in the document summarising her position in relation to the allegations, the Teacher admitted allegation 1(a), that she failed to follow School 1’s policy on a restorative approach to support effective teaching and learning. The Teacher admitted this allegation to the extent that she did not use the time out cards which were issued to be used as part of the policy.

In relation to allegation 1(b), the Teacher admitted making the remark, “will someone give that boy a Chinese burn” or words to that effect, but denied that that was an instruction, order or direction.

In relation to allegation 1(c), the Teacher admitted that she used inappropriate language in that she said, “your attitude is shit” or words to that effect to pupils in an S3 class in response to pupils’ behaviour during the lesson. The Teacher denied using the term, “little shits”.

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

PO1 Notice of Presenting Officer's Case Form
PO2 Witness statement of Witness 1 dated 7 February 2017 (attended the hearing)
PO3 Witness statement of Witness 2 dated 18 August 2016 (attended the hearing)
PO4 Witness statement of Witness 3 dated 20 September 2016 (attended the hearing)
PO5 School 1 Climate for Learning - A Restorative Approach to Support Effective Teaching and Learning
PO6 Report by Witness 1 to the Quality Improvement Officer and appendices thereto
PO7 Report by Witness 1 to Head of Secondary Education and Additional Support and appendices thereto
PO8 Letter from Balfour + Manson Solicitors dated 30 November 2016 and appendices thereto

Teacher’s hearing papers

T1 Letter from Jamie Foulis dated 6 November 2017
T2 Notice of Hearing Response Form
T3 Statement of the Teacher dated 28.09.2017
T4 Email from the Head Teacher to Witness 1 dated 06.03.2016
T5 Letter from OH Assist dated 04.04.2016
T6 Prescriptions List
T7 Prescription dated 27.09.2016
T8 Print out from Drugs.com
T9 Statement of Witness 4 (attended the hearing by teleconference)
T10 Statement of Witness 3 dated 05.10.2017 (attended the hearing by teleconference)
T11 Statement of Pupil A
T12 Testimonial from Pupil A
T13 Statement of Pupil B
T14 Testimonial from Pupil B
T15 Statement of Pupil C
T16 Testimonial from Pupil C
T17 Statement of Pupil D
T18 Statement of Friend 1
T19 Emails and letters from pupils
T20 Statement of Parent 1
T21 Letter from Family 1
T22 Testimonial from Parent 2
T23 Thank you letters from student teachers
T24 Thank you letter from Person 1
T25 Testimonial from Person 2
T26 Testimonial from Drama Coordinator
T27 Testimonial from Colleague 3
T28 Testimonial from Colleague 4
T29 Summary of Teacher’s position (admitted late)
T30 Pupil work (admitted late)

Servicing Officer’s hearing papers

S1 Notice of Full Hearing

Summary of oral evidence

Witness 1

Witness 1 read aloud his signed statement and was asked questions about it. He was employed as a Depute Head Teacher, and at the relevant time he was employed as a Depute Head Teacher at School 1. He was the Investigating Officer into the two unrelated incidents concerning the Teacher, which formed the allegations. He was the line manager to Witness 2.

Witness 1 was asked by the Head Teacher to investigate the incidents. His investigation into the events on 14 January 2016 involved interviews with 7 pupils (with a parent present during each interview), with 2 teachers, Witness 2 and Colleague 5, and with the Teacher. Witness 1 prepared a report of his investigation which was included within the Presenting Officer’s hearing papers.

Witness 1’s investigation into the second incident on 10 March 2016 involved interviews with 3 members of staff who had attended a post-incident meeting on 15 March 2016, Witness 2, Colleague 1 and Witness 1, and the Teacher’s responses to written questions regarding the incident. Witness 1 prepared a report of his investigation which was included within the Presenting Officer’s papers.

Witness 1 explained that, in relation to his investigation into the events on 14 January 2016, apart from the 2 pupils directly involved in the incident, he chose pupils from the class who he thought would be reliable. He did not prompt their answers. The interview notes with his report were an accurate reflection of what the pupils said.

Witness 2

Witness 2 read aloud his signed statement and was asked questions about it. He was employed as a Depute Head Teacher. At the time of the allegations, he was a Faculty Head of Expressive Arts at School 1, and the Teacher’s Line Manager. He gave evidence about his involvement in investigating the allegations including his initial conversation with the Teacher shortly after the incidents on 14 January 2016, the meeting on 15 March 2016, and his two statements taken at interview by Witness 1.

Colleague 1

Colleague 1 read aloud his signed statement and was asked questions about it. He was employed at School 1 as a teacher of Drama. He gave evidence about the incident on 10 March 2016, the meeting on 15 March 2016 and his statement taken at interview by Witness 1.

The Teacher (by video link)

The Teacher read aloud her signed statement and was asked questions about it. She had been employed as a Drama Teacher at School 1 at the time of the allegations. She was currently taking a career break. She gave evidence about the incidents and her involvement in the investigations. She gave evidence about her health in 2016 and now, her remorse, remedial steps taken, steps taken to continue her professional development, and her desire to continue teaching.

Witness 3

Witness 3 had provided a signed statement and was asked questions about it. Formerly he had been employed as a Pupil Support Worker based at School 1. He gave evidence about his knowledge of the Teacher’s work as a teacher and her character. His evidence was positive regarding the Teacher’s qualities and abilities as a teacher and colleague.

Witness 4

Witness 4 had provided a signed statement and was asked questions about it. He was formerly a teacher at School 1 and a colleague of the Teacher in the Expressive Arts Faculty. He gave evidence as to his knowledge of the Teacher’s work as a teacher and her character. His evidence was positive regarding the Teacher’s qualities and abilities as a teacher and colleague.

Findings in 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 had regard to the GTCS Fact-finding in Fitness to Teach Conduct Cases Practice Statement.

The Panel found that Witness 1 was a credible and reliable witness. He gave his evidence well and in a measured way. He clearly reported on the investigations undertaken. The Panel noted that he was from a different area of the school to the Teacher, enhancing his objectivity in the conduct of the investigation. He explained his choice of pupils interviewed for their reliability and he gave his impression of the pupils interviewed. The Panel was of the view that Witness 1 was balanced in his evidence. For example, he accepted where the investigation process could have been carried out differently. He accepted that pupils could have discussed the incident prior to being interviewed. In addition, he gave a balanced view of why the anonymised pupil’s account of the incident on 14 January 2016 made the incident appear more serious than the accounts provided by other pupils. Witness 1’s evidence was consistent with his report which was contained within the Presenting Officer’s hearing papers.

The Panel found that Witness 2 was a credible and reliable witness. He gave his evidence clearly and sincerely. He had a clear recollection of how the incident on 14 January had come to his attention, his subsequent conversations with pupils, the Teacher and Witness 1. In particular, the Panel considered Witness 2 to have a very clear recollection of the discussion he had had with the Teacher shortly after the incident on 14 January 2016 and what he had been asked by her. Similarly, he recalled Colleague 1 reporting the incident of 10 March 2016 to him and having a meeting on 15 March to discuss relationships. Witness 2’s evidence was balanced and it appeared to the Panel that he had had a good working relationship with the Teacher in that she had discussed any concerns with him. There was no indication that Witness 2 would have any motivation to fabricate or exaggerate what he had been told regarding either incident.

The Panel was of the view that the Teacher was credible and reliable in relation to certain aspects of her evidence namely, regarding her health and personal circumstances (both at the time of the incident and now), her commitment to teaching, and her explanation of what she had been doing since the time of the incident, including how she had reflected on the incident and the steps she had taken to remedy the conduct and reduce the risk of recurrence.

However, the Panel found that the Teacher was not completely credible or reliable in her evidence regarding the specific allegations. What she said about the incidents was confused and lacked focus, and she avoided answering some questions clearly. In the Panel’s view, she had an interest in trying to minimise what had occurred. She claimed that all of the 7 pupils who were interviewed recalled the incidents on 14 January 2016 incorrectly and, in addition, that Witness 2 had incorrectly recalled his discussion with her following the incident. The Panel found that the Teacher was not reliable or credible in her evidence on the incident on 10 March 2016. She had a clear interest in saying the incident did not occur as Colleague 1 described. She conceded that, at the meeting on 15 March 2016, Colleague 1 had said, “Katie, you swore at me”, which she had not denied, but in her evidence she claimed this referred to her saying to him, “stuff that” on 10 March 2016. The Panel did not find this credible as “stuff that” could not be interpreted as swearing or be described as speaking to someone in an aggressive or abusive manner. Nor did they find credible her explanation for not seeing Colleague 1 raise his hand, being that she had walked away.

In relation to allegation 2, there was a stark dispute between the Teacher and Colleague 1 as to what occurred. The Panel considered that Colleague 1 was credible and reliable. He gave his evidence very clearly. He conceded that maybe he should not have put up his hand, but was very clear of the Teacher’s words to him. There was nothing about his demeanour to suggest he was not telling the truth.

The Panel found that Witness 3 and Witness 4 both gave their evidence in a straightforward manner. Both witnesses were credible and reliable.

Allegation 1(a)

Given the Teacher’s admission, the Panel found allegation 1(a) proved.

Allegations 1(b) and (c)

Of the 7 pupils interviewed, a number supported the allegations, although there were slight differences between the pupils’ statements at interview. In summary, 5 of the 7 pupils confirmed that the Teacher gave the instruction to the pupil; 4 of the 7 pupils confirmed that the instruction was reinforced by the Teacher, but the number of times varied between 2 and 4 times; and, 6 of the 7 pupils confirmed that the Teacher called the pupil a "little shit", but the amount of times it was repeated varied. These differences tended away from there being deliberate collusion between the pupils, and supported their credibility. Witness 1 explained his choice of reliable pupils and said he had no reason to believe that the pupils were not telling the truth; he did not believe there had been collusion. He considered that inconsistencies between them may be due to their having to recall the incident a number of weeks after the event. When asked about the pupils who had given statements at interview, the Teacher said she did not take issue with the cross-section of pupils chosen. She agreed that they were generally reliable and well-behaved, apart from the two pupils involved in the incidents.

Importantly, this evidence from the pupils was consistent with Witness 2’s evidence of what the Teacher said to him the next day in response to his open questions about what had happened, when she said “1) Was it because I called him a little shit or I swore? 2) Was it the Chinese burn? 3) Is it the stabbing of the pencil?”.

The contrary evidence from the Teacher was not reliable or credible, as noted above. She claimed to have made a throwaway remark on one occasion, “someone just give him a Chinese burn” and later to have said to the pupil that his “attitude was shit”. The Panel preferred the other evidence.

The Panel was satisfied on the evidence that the Teacher told an S3 pupil to give another S3 pupil a “Chinese burn”, and she reinforced this when the S3 pupil queried it. The Panel was satisfied that what she said could reasonably be regarded by the S3 pupil as an instruction, even if she had only intended it to be a throwaway remark, particularly as the Panel believed it had been reinforced.

The Panel was satisfied on the evidence that the Teacher used the term “little shit” directed towards an S3 pupil, as alleged in allegation 1(c). None of the 7 pupils interviewed recalled her saying to him that his “attitude was shit” as she claimed. Also, what the Teacher said to Witness 2 the day after the incident supported that she had called the pupil a “little shit”.

Therefore, in relation to allegations 1(b) and 1(c), the Panel was satisfied on a balance of probabilities that both allegations were proved.

The Panel did express its concern that the notes taken by Witness 2 and Colleague 5 of initial discussions with pupils on 14 and 15 January 2016 were not available, and also that it was approximately three weeks later before Witness 1 interviewed the pupils. It would have been preferable that initial notes were retained and that pupil interviews had taken place quicker.

Allegation 2

As noted above, there was a stark dispute between Colleague 1 and the Teacher as to what occurred on 10 March 2016. The Panel found Colleague 1 credible and reliable in his account of what occurred.

The Panel took into account the Minutes of the meeting of 15 March 2016 which referred to Colleague 1 complaint that the Teacher had spoken to him in an aggressive and abusive manner, which was consistent with swearing. This supported Colleague 1’s account. The Panel took into account Colleague 1’s description of Colleague 1 being visibly upset by what the Teacher had said to him on 10 March 2016. The Panel considered the behaviour of Colleague 1 and the Teacher at the meeting on 15 March 2016, as described by Witness 2 and Colleague 2 in their interviews by Witness 1 on 24 March 2016, contained within the Presenting Officer’s papers: Colleague 1 was described as calm and thoughtful, while the Teacher became dramatic, upset and walked out of the meeting.

The Teacher’s evidence on this incident was not credible or reliable, as noted above.

In relation to allegation 2, the Panel was satisfied on a balance of probabilities that the allegation was proved.

Fitness to teach

Given that the Panel found that all 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.

Mr Burton did not lead evidence, but made submissions that the actions amounted to misconduct. He referred the Panel to the GTCS Indicative Outcomes Guidance Practice Statement, and confirmed that the test for impairment is whether the Teacher is impaired at this stage, and that a holistic approach is required. He reminded the Panel of some of the evidence, and the Parts of the GTCS Code of Professionalism and Conduct (COPAC) which were breached. He submitted that her actions had fallen short of these standards, and that it was for the Panel to determine the extent.

Mr Foulis did not lead evidence. He agreed that the Parts of COPAC referred to by Mr Burton were relevant. He invited the Panel to find that the Teacher’s fitness to teach was impaired but not that she was unfit to teach. He confirmed that his instructions were that the Teacher admitted that her fitness to teach is currently impaired.

Mr Foulis submitted that the conduct was remediable. He reminded the Panel of the evidence as to remediation to date, including the evidence as to the Teacher’s insight, her remorse, how she would deal with such situations in the future, her progress as to her personal wellbeing. In relation to the risk of recurrence, he reminded the Panel of the positive evidence from others as to her strengths as a teacher and the absence of previous similar incidents.

Decision

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 was satisfied that the Teacher’s conduct at the time of the incidents fell short of the expected professional standards and amounted to misconduct, and in particular breached Parts 1.2, 1.3, 1.4, 1.6 and 4.1 of COPAC. The Panel did not consider that the allegations amounted to a significant shortfall from the standards expected of a Registered teacher. Accordingly, the Panel considered that, at the time of the allegations, the Teacher’s fitness to teach was impaired.

The Panel considered that all of the conduct was remediable. It considered that, on the Teacher’s evidence, significant steps had been taken to remedy the conduct. For example, the Teacher had completed a course on learning through repetition, undertaken voluntary drama work with young people, and attended meetings at the Royal Conservatoire of Scotland in Glasgow regarding developments in SQA drama courses. In particular, the Teacher had showed some insight into the incidents, recognising that she did not deal with the situations properly and indicating how she would manage such situations differently in the future. She had reflected on what had happened. Although she still suffered from XXXXXXXXXXXXX, she was calmer and refreshed having had some time away from teaching. She demonstrated remorse, although she did not fully admit the allegations. She had taken some steps to keep up-to-date with professional practice, while on a career break. She remained keen and enthusiastic about teaching drama. If situations arose again, she would see warning signs and know to seek advice and support from others. The Panel considered that there was only a low risk of recurrence. That said, the Panel required to take into account the Teacher’s admission that she was currently impaired.

In the circumstances, the Panel concluded that the Teacher’s fitness to teach is impaired.

Disposal

In considering the appropriate disposal, the Panel had regard to Part B of the GTCS Indicative Outcomes Guidance. In accordance with that guidance, the Panel considered the disposal options starting with the least severe. The Panel noted that not all indicating factors had to be present for a disposal to be considered appropriate.

The Panel first considered whether a Reprimand would be appropriate and considered the indicating factors for a Reprimand listed in the Indicative Outcomes Guidance. The Panel was satisfied that most of these factors were met: there was a partial admission, the Teacher had demonstrated significant remorse and remediation, the allegations related to two isolated incidents only, there had been no repetition, there was extensive evidence before the Panel of the Teacher’s good character as well as positive information about her teaching, professionalism and positive relationships with colleagues and pupils prior to the incident, and there was no evidence before the Panel of any other incident having arisen previously during the Teacher’s career, which spanned in excess of 25 years. The Panel considered that a Reprimand was sufficient for the public interest given the nature of the incidents. The Panel was satisfied that a Reprimand should be issued.

The Panel considered that a Reprimand for 6 months would be appropriate, given the indicating factors already referred to as leading to the decision that a Reprimand was the appropriate disposal.