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Fitness to Teach conduct cases: indicative outcomes guidance practice statement
Document icon
Fitness to Teach conduct cases: indicative outcomes guidance practice statement
Fitness to Teach conduct cases: indicative outcomes guidance practice statement

Stage 2 - determining fitness to teach

General guidance

If a panel has decided that some or all of the allegations are proved (stage 1 of the process), it will need to decide on the teacher’s fitness to teach (stage 2 of the process). This is a matter of judgement for the panel and is not something that is proved in the same way as findings of fact are. The panel may hear further evidence at this stage and will invite those parties present to make submissions.

The law states that an individual is unfit to teach if a panel considers that their conduct falls significantly short of the standards expected of a registered teacher4. An individual’s fitness to teach is impaired where a panel considers that the individual’s conduct falls short of the standards expected of a registered teacher5.

Fitness to teach is a current test. This means that the concerns must affect the teacher’s fitness to teach now. The panel should therefore apply the fitness to teach tests described above to the teacher currently (at the time the case is being considered and for the foreseeable future rather than, for example, at the time that the facts found proved took place). This is consistent with the principle that professional regulation is about looking forward in order to protect rather than about looking back in order to punish and also aligns with relevant case law (a summary of which is provided in Appendix 2).

Assessing fitness to teach should be approached holistically, taking account of:

  • the way the teacher has acted or failed to act
  • where the teacher is now with regards to their fitness to teach (which means looking at what the teacher has done to address the issues as well as any other contextual factors that are relevant to determining whether it is likely that they will happen again)
  • the wider public interest

The 3-step process

In determining the individual’s fitness to teach, the panel should consider the following.

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The panel should have regard to the GTC Scotland Code of Professionalism and Conduct (‘COPAC’) in determining this. It may also make use of the professional judgement, expertise and experience of its panel members.

If the panel establishes that the teacher’s conduct at the time fell short of the expected professional standards, it should then move on to step 2 to decide on whether the teacher’s fitness to teach is currently impaired. The panel should consider:

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In deciding whether the shortfalls identified are remediable; whether they have been remedied; and whether there is a likelihood of recurrence in terms of stage 2 above, the panel may be asked to consider character evidence. While it is appropriate to do so, a panel should proceed with caution. Panels must draw a distinction between evidence which has a direct bearing on the fitness to teach findings it must make and evidence which is simply about the teacher’s general character. General character evidence will only be relevant as mitigation at the disposal determination stage (stage 3). Character evidence that is relevant to the determination of the Fitness to Teach stage (stage 2) would be expected to relate only to what the teacher has done to remedy the conduct matter(s) identified and the insight they have demonstrated as a result; how they are currently performing or behaving; and/or the absence or presence of similar events in the teacher’s history.

If the panel decides that the teacher’s fitness to teach is currently impaired, it will then need to make a judgement as to the extent to which the teacher has fallen short of the standards expected. The critical question will be: is the teacher currently falling significantly short of the standards expected meaning that they are unfit to teach? Or is the teacher’s fitness to teach falling short of the standards expected meaning that their fitness to teach is impaired?

Examples of behaviour which indicate the teacher may have fallen significantly short of the standards expected:

  • serious violence (including violence against children or young people)
  • sexual assault of a child or adult (including attempted sexual assault and attempted access to, or possession of, child sexual abuse materials)
  • sexualised behaviour towards children or young people
  • forming or attempting to form inappropriate relationships with children or young people
  • serious and/or persistent dishonesty

The above are examples only: a panel must use its own judgement in each individual case.

If the panel concludes that the teacher is either currently impaired or unfit to teach, then the panel should move on to stage 3 to determine the outcome.

If the conclusion at step 2 above is that the shortfalls are remediable, have been remedied and that recurrence is not likely, the panel should move on to step 3 and consider:

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This stage needs to be approached objectively, focusing on what the reasonable public perception would be of the seriousness of the identified conduct and, accordingly, what action would be reasonably expected from the professional regulator taking this into account. Guidance on what consideration of the public interest involves and the factors to take into account is set out above.

If the panel concludes, under step 3, that there requires to be a finding that the teacher’s fitness to teach is impaired or the teacher is unfit to teach, then the panel should move on to stage 3 to determine the outcome.

{{highlight-04}}

General guidance

If a panel has decided that some or all of the allegations are proved (stage 1 of the process), it will need to decide on the teacher’s fitness to teach (stage 2 of the process). This is a matter of judgement for the panel and is not something that is proved in the same way as findings of fact are. The panel may hear further evidence at this stage and will invite those parties present to make submissions.

The law states that an individual is unfit to teach if a panel considers that their conduct falls significantly short of the standards expected of a registered teacher4. An individual’s fitness to teach is impaired where a panel considers that the individual’s conduct falls short of the standards expected of a registered teacher5.

Fitness to teach is a current test. This means that the concerns must affect the teacher’s fitness to teach now. The panel should therefore apply the fitness to teach tests described above to the teacher currently (at the time the case is being considered and for the foreseeable future rather than, for example, at the time that the facts found proved took place). This is consistent with the principle that professional regulation is about looking forward in order to protect rather than about looking back in order to punish and also aligns with relevant case law (a summary of which is provided in Appendix 2).

Assessing fitness to teach should be approached holistically, taking account of:

  • the way the teacher has acted or failed to act
  • where the teacher is now with regards to their fitness to teach (which means looking at what the teacher has done to address the issues as well as any other contextual factors that are relevant to determining whether it is likely that they will happen again)
  • the wider public interest

The 3-step process

In determining the individual’s fitness to teach, the panel should consider the following.

{{highlight-01}}

The panel should have regard to the GTC Scotland Code of Professionalism and Conduct (‘COPAC’) in determining this. It may also make use of the professional judgement, expertise and experience of its panel members.

If the panel establishes that the teacher’s conduct at the time fell short of the expected professional standards, it should then move on to step 2 to decide on whether the teacher’s fitness to teach is currently impaired. The panel should consider:

{{highlight-02}}

In deciding whether the shortfalls identified are remediable; whether they have been remedied; and whether there is a likelihood of recurrence in terms of stage 2 above, the panel may be asked to consider character evidence. While it is appropriate to do so, a panel should proceed with caution. Panels must draw a distinction between evidence which has a direct bearing on the fitness to teach findings it must make and evidence which is simply about the teacher’s general character. General character evidence will only be relevant as mitigation at the disposal determination stage (stage 3). Character evidence that is relevant to the determination of the Fitness to Teach stage (stage 2) would be expected to relate only to what the teacher has done to remedy the conduct matter(s) identified and the insight they have demonstrated as a result; how they are currently performing or behaving; and/or the absence or presence of similar events in the teacher’s history.

If the panel decides that the teacher’s fitness to teach is currently impaired, it will then need to make a judgement as to the extent to which the teacher has fallen short of the standards expected. The critical question will be: is the teacher currently falling significantly short of the standards expected meaning that they are unfit to teach? Or is the teacher’s fitness to teach falling short of the standards expected meaning that their fitness to teach is impaired?

Examples of behaviour which indicate the teacher may have fallen significantly short of the standards expected:

  • serious violence (including violence against children or young people)
  • sexual assault of a child or adult (including attempted sexual assault and attempted access to, or possession of, child sexual abuse materials)
  • sexualised behaviour towards children or young people
  • forming or attempting to form inappropriate relationships with children or young people
  • serious and/or persistent dishonesty

The above are examples only: a panel must use its own judgement in each individual case.

If the panel concludes that the teacher is either currently impaired or unfit to teach, then the panel should move on to stage 3 to determine the outcome.

If the conclusion at step 2 above is that the shortfalls are remediable, have been remedied and that recurrence is not likely, the panel should move on to step 3 and consider:

{{highlight-03}}

This stage needs to be approached objectively, focusing on what the reasonable public perception would be of the seriousness of the identified conduct and, accordingly, what action would be reasonably expected from the professional regulator taking this into account. Guidance on what consideration of the public interest involves and the factors to take into account is set out above.

If the panel concludes, under step 3, that there requires to be a finding that the teacher’s fitness to teach is impaired or the teacher is unfit to teach, then the panel should move on to stage 3 to determine the outcome.

{{highlight-04}}

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Step  1

Whether the facts found proved mean that the teacher’s conduct  at that time fell short of the expected professional standards.

Step 2

Whether the shortfalls identified are (a) remediable; (b) (if they are remediable) whether they have been remedied; and (c) whether there is a likelihood of recurrence. The panel should approach this stage critically and have regard to the following as part of its assessment:

  • what is the age of the behaviour?
  • what is the level of seriousness of the allegation? This will include consideration of the degree of harm or risk of harm and the teacher’s intentions. If the panel concludes that the conduct identified is so serious that it is fundamentally incompatible with being a registered teacher, this suggests that it is not remediable
  • has the level of seriousness been increased by any other aggravating factors, for example, the way in which the teacher has engaged (or failed to engage) in the Fitness to Teach process? Does the allegation involve a vulnerable individual whose vulnerability is relevant to the conduct?  
  • is there any previous history of concerns or do the allegations indicate a pattern of behaviour that make the likelihood of recurrence more likely? One incident or an isolated set of events is less likely to amount to an impairment of fitness to teach than a pattern of behaviour (or more than 1 incident) which tends to suggest that the teacher will repeat the behaviour and that there is more of a serious underlying issue
  • has the teacher shown sufficient insight? For example, has the teacher admitted the allegation only in part or at a late stage in the process? It is important to note that it is not necessary for a teacher to make admissions to demonstrate insight. Other considerations may include whether the teacher has apologised to those affected, whether the teacher has accepted they ought to have behaved differently and explained why, whether the teacher has recognised what went wrong, what the impact has been on others and accepted how they are relevant to what happened, and whether the teacher has demonstrated what they would do differently if the same circumstances arose again. The panel will need to consider whether it can be satisfied that the teacher has demonstrated sufficient insight in order to remediate the conduct and mitigate the risk of it happening again
  • has evidence of the steps taken to show insight and/or remediate been verified or confirmed with someone other than the teacher?  If not, the panel will need to consider carefully the weight that it places on that evidence
  • do the teacher’s current circumstances or any other surrounding factors make the risk of recurrence unlikely? For example, has the conduct been caused by a health condition or inexperience at the early career stages?  Alternatively, has the teacher since retired from teaching  or do they have a chronic or permanent health condition that means the risk of continued teaching is removed? (Note: a panel should not accept as offsetting the risk of harm any undertakings offered by the teacher (for example, ‘I will not seek employment’ or ‘I will not change jobs’) as these are unenforceable)

Step 3

Is there nevertheless an overriding public interest in making a finding that the teacher’s fitness to teach is impaired or that the teacher is unfit to teach in the circumstances?

4 Article 18(3) of the Public Services Reform (General Teaching Council for Scotland) Order 2011

5 Rule 1.2.1 of the General Teaching Council for Scotland Fitness to Teach Rules 2017

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Contents
1
Process flowcharts
2
Introduction
3
Public interest
4
Full hearing conduct cases
5
Stage 2 - determining fitness to teach
6
Stage 3 - determining outcomes
7
Reprimand
8
Conditional registration order
9
Conditional registration order and reprimand
10
Removal of registration or refusal of application for registration
11
Appendix 1 - conditions bank
12
Appendix 2 – summary of relevant case law
Example H2
Example H3
Example H4
Example H5
Example H6
Page content
Pages
Example H2
Example H3
Example H4
Example H5
Example H6
1
Process flowcharts
2
Introduction
3
Public interest
4
Full hearing conduct cases
5
Stage 2 - determining fitness to teach
6
Stage 3 - determining outcomes
7
Reprimand
8
Conditional registration order
9
Conditional registration order and reprimand
10
Removal of registration or refusal of application for registration
11
Appendix 1 - conditions bank
12
Appendix 2 – summary of relevant case law
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