Fitness to Teach Panel Decision - Virtual Hearing Application - Phillipe Magalon

Teacher

Phillipe Magalon

Date

Dates

23 October 2024

Registration number

079710

Registration category

Secondary – French, History and Modern Studies

Panel

Diane Molyneux, Helen James and Angela Blair

Legal assessor

Graeme Dalgleish

Servicing officer

Emily West

Presenting officer

Chris Weir, Anderson Strathern (not present)

Teacher's representative(s)

n/a

Any reference in this decision to:

• ‘GTC Scotland’ 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 GTC Scotland Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.
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Background

The Panel Meeting was arranged to consider the following:

• An Application made by the Presenting Officer for the full Fitness to Teach Conduct Hearing to be held virtually by way of Microsoft Teams

By default, GTC Scotland conducts all its fitness to teach hearings in person in its dedicated Hearings Suite at its office in Edinburgh. However, in line with Rule 1.7.6, a Fitness to Teach Panel may order that all or any part of a hearing may be conducted by the use of electronic communications provided the method adopted allows the parties, the Panel and any witnesses to attend remotely, and, where the hearing is in public, allows the public to view proceedings.

Electronic communications are commonly used for witnesses to give evidence by participating from a remote location. In addition, an entire hearing may be conducted via electronic communication. Such a hearing is described as a ‘virtual hearing’.

An application for use of electronic communications in relation to a participant taking part in a hearing from a remote location, or for a virtual hearing, is made by the party who wants to use electronic communication. The relevant procedure and criteria for determining such applications are set out in the Use of Electronic Communications in Hearings Practice Statement.
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Evidence

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 meeting:

1 Presenting Officer’s Application for a Virtual Hearing, dated 7 June 2024;

2 Appendix to Application;

3 Email from witness [Witness A], dated 10 May 2024;

4 Email from Servicing Officer to parties including case management directions, dated 5 June 2024;

5 Delivery receipt – Teacher, dated 5 June 2024;

6 Emails between Servicing Officer, Presenting Officer and Teacher, dated 10 and 21 August 2024; and

7 Email from Servicing Officer to Presenting Officer regarding witness test call, dated 9 September 2024.
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Preliminary Matters

The Panel carefully considered the terms of Rule 2.5.1:

‘At any stage of proceedings, a Panel of its own volition, on the Convener’s direction or

upon the application of a party (in such form as may be specified by the Servicing Officer),

may:

(a) determine any interim or preliminary matter that has arisen in the case;

(b) resolve any issues of law; or

Unless a party has (in the relevant application) requested that a procedural hearing be held, or a Panel considers that such a hearing is necessary in the particular circumstances, the above matters will be considered by a Panel at a meeting based on the written representations made by the parties in compliance with case management directions set for this purpose.’

The Panel noted that neither of the parties requested the procedural hearing in the submissions made. Further to this, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the matter on the papers.
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Application

An Application dated 7 June 2024 for a virtual hearing was made by the Presenting Officer. The Panel was satisfied that, under Rules 1.7.6 and 1.6.1, notice had been correctly served on the Teacher, and he had been given the opportunity to respond. The Panel noted that the Teacher did not provide a response to the Application but did reply to the Case Management Directions expressing his views about the progression of his case to a Full Hearing. The Panel considered the Application and submissions made in response which addressed, in particular, the following factors:

• Is the Teacher represented?

The Teacher is not represented.

• Does the Teacher have any particular needs or vulnerabilities?

The Panel were not made aware of any particular needs or vulnerabilities in respect of the Teacher. However, the Panel did note the Teacher’s email communication after being emailed by the Servicing Officer about providing a response to the virtual hearing Application. The Panel noted that the tone of the Teacher’s emails and his distrust of the process, including the process being hostile and that he feels harassed, may suggest a potential vulnerability.

• The nature of the proceedings and issues to be determined at the hearing?

The nature of proceedings is a Fitness to Teach full hearing. The allegations are not admitted; therefore, the hearing will commence at Stage 1. The Panel acknowledged that in the Practice Statement, it states that it should be easier to conduct a full hearing from stage 2: fitness to teach than a full hearing also requiring to consider stage 1: the allegations.

• The estimated length of the hearing?

The running order has yet to have been prepared. However, the Presenting Officer estimates that the hearing will take no more than 3 days to conclude.

• The extent and complexity of the issues in dispute?

The Panel noted that the Presenting Officer’s position is that the case is not overly complex despite the factual dispute. Thereafter, if the allegations are found proved, the Panel will require to assess the issues of impairment and thereafter sanction, if applicable.

• Will the hearing take place in public or (partly) in private?

The hearing is currently taking place in public.

• The volume of documentation to be referred to during the hearing and how documentation will be provided to witnesses for reference, if required?

The Panel noted a contradiction in the Application. The Presenting Officer states on page 4 of the bundle that the documentation amounts to 69 pages approximately, whereas on page 8 of the bundle, he states that the documentation amounts to 62 pages approximately. The Presenting Officer states that ‘Mini’ evidence bundles containing any documentation parties wish to direct the witness to, will be collated and emailed to the witness the day before the hearing, as requested by the witness, due to [redacted]

• The nature of witnesses to give evidence at the hearing?

The Panel noted that the Presenting Officer did not comment on the nature of the witnesses. However, as part of the Presenting Officer’s Application (page 9), he included an email from the only witness, which confirmed [redacted].

• How long is each witness estimated to give evidence for?

It is anticipated that each witness will not be required to give evidence for more than 1-1.5 hours.

• Do any of the witnesses have particular needs or vulnerabilities?

The Panel noted that the Presenting Officer did not comment on the needs of the witness. However, as part of the Presenting Officer’s Application (page 9), the Presenting Officer included an email from the only witness, which [redacted] and would appreciate to have sight of any evidence or reference papers a minimum of one working day prior to the hearing.

• How easily the Panel will be able to assess the credibility and reliability of witnesses

The Panel noted no issues with being able to assess the credibility and reliability of witnesses.

• What confidence is there that each witness will be able to follow questions easily and any documents being referred to?

The Panel noted that the Presenting Officer’s position is that witnesses would be able to follow questions easily and any documents being referred to. The Panel also noted that there was no indication from the email sent by the witness, that they would not be able to follow questions easily and any documents being referred to.

• Will all participants at the hearing have access to a suitable electronic device?

The Presenting Officer states that the witness confirmed they have access to a suitable electronic device. This is confirmed by the email on page 9 of the bundle from the witness to the Presenting Officer. GTC Scotland can carry out test calls ahead of the hearing if required. As the Teacher did not respond to the Application, the Teacher’s position is unknown as to whether he has a suitable electronic device. However, the Panel did note that the Teacher has been responding to emails from GTC Scotland.

• Will all participants have a suitable internet connection capable of coping with the requirements of a virtual hearing?

It is envisaged that the parties will have a suitable internet connection capable of coping with the requirements of a virtual hearing. GTC Scotland can carry out test calls ahead of the hearing if required. As the Teacher did not respond to the Application, the Teacher’s position is unknown as to whether he has a suitable internet connection. However, the Panel did note that the Teacher has been responding to emails from GTC Scotland.

• Will all participants have an appropriate location from where they can participate alone and undisturbed?

The Presenting Officer states that the witness confirmed they have an appropriate location from which they can join the hearing. This is confirmed by the email on page 9 of the bundle from the witness to the Presenting Officer. In guidance issued to all participants, GTC Scotland makes it clear that parties and witnesses must be in a private location where they can be alone and will not be disturbed. As the Teacher did not respond to the Application, the Teacher’s position is unknown as to whether he has an appropriate location to participate from.
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Decision

The Panel appreciated that it should balance all the relevant factors outlined above, the interests of the parties and the public interest in deciding whether or not to grant the Application.

The Panel carefully considered the Application and submissions made in response to it. The Panel had regard to the Rules and to the Use of Electronic Communications in Hearings Practice Statement as well as the advice, as required, of the Legal Assessor and Servicing Officer.

The Panel decided that the balance of the various factors and interests to be assessed in determining the Application weighed in favour of granting the Application made.

The Panel was satisfied that there was no reason not to grant this Application. The Panel acknowledged that there has been no expression of preference for it to be in person from the Teacher. The Panel noted that the only contact GTC Scotland appears to have with the Teacher is via email, and there is no information available to the Panel about where he lives. The Panel therefore considered that if the Teacher does decide to engage at a later stage, it may be easier for him to engage if the hearing is virtual.

Accordingly, the Panel granted the Application for the hearing to take place virtually.

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