You are here: Home > Regulation > Outcomes > Decisions > Decision David McGhee General Teaching Council for Scotland Fitness to Teach Panel Outcome Full Hearing The decision in this case is currently subject to appeal to the Court of Session. 9, 10, 11 & 12 October 2017 Teacher David McGhee Registration number 891246 Registration category Secondary - History, Modern Studies, Religious Education Panel Frieda Fraser (Convener), Ian McDonough and Lynda Dalziel Legal Assessor James Mulgrew Servicing Officer Dani Tovey Presenting Officer Deborah Russell (Anderson Strathern Any reference in this decision to: “GTCS” means the General Teaching Council for Scotland; the “Panel” means the Fitness to Teach Panel considering the case; the “Rules” (and any related expression) means the GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them; “COPAC” refers to the GTCS Code of Professionalism and Conduct; the “Standards” refers to the GTCS Standards for Registration 2012; and the “Register” means the GTCS register of teachers. Preliminary issues Absence of the Teacher The Teacher did not attend the hearing. As set out in Rule 1.7.8, the Panel required to consider (a) whether notice of the hearing had been sent to the Teacher in accordance with the Rules, and (b) whether or not it is just to proceed to hear and dispose of the case in the absence of the Teacher. In approaching this matter, the Panel had regard to the Postponements, Adjournments and Proceeding in the Absence Practice Statement. The Panel also had regard to Rules 1.6 and 1.7.11 to 1.7.14. The Panel had been provided with a copy of the Notification of Full Hearing dated 29 August 2017 together with an email from the Teacher dated 31 August 2017 acknowledging receipt of the Notification of Full Hearing. The Panel was satisfied that the Teacher had been sent the Notification of Full Hearing in accordance with the Rules and that he had received it. In particular, the Panel noted that the Teacher had responded to it. As the Panel was satisfied that the Teacher had been notified of the hearing in accordance with the Rules, the Panel moved on to consider whether to proceed with the hearing in the Teacher’s absence or to adjourn the hearing to a later date. The Panel noted that the Teacher had renewed a request to postpone the full hearing within a supplementary Notice of Respondent’s Case Form dated 4 October 2017. The basis of the application was that the Teacher was unable to attend the full hearing on medical advice. A letter from Witness T (Doctor) dated 22 September 2017 previously submitted by the Teacher was referred to. The Presenting Officer opposed the application to postpone the full hearing and submitted that the Panel should proceed with the full hearing in the absence of the Teacher. The Panel noted that the Teacher had requested a postponement of the full hearing by email on 22 September 2017. That postponement request was refused by the Convener of the Fitness to Teach Panel and a note of the reasons for the decision to refuse the postponement request had been intimated to parties in a letter dated 28 September 2017. That request had also been made (in part) on the basis of the Teacher’s health and had been supported by the letter from Witness T (Doctor) dated 22 September 2017. In the letter dated 28 September 2017 refusing the postponement, the Convener had addressed the medical evidence put forward in support of the application. The Panel noted that no further medical evidence had been provided by the Teacher in support of the latest postponement request. The Panel had regard to the GTCS Health Matters and Medical Evidence Practice Statement. The Panel agreed with the Convener’s assessment of the letter from Witness T (Doctor) as set out in the postponement decision dated 28 September 2017. The Panel decided to refuse the application to postpone the hearing and decided to proceed to hear and dispose of the case in the absence of the Teacher. The Panel was aware that it must exercise caution in making such a decision given the significance to the Teacher of the potential outcomes available to the Panel. However, the Panel concluded that the evidence regarding the Teacher’s health was limited and unsatisfactory. The Teacher had not reacted to the postponement refusal issued on 28 September 2017 by way of obtaining a supplementary medical letter from his GP. In particular, the Panel noted that the Teacher’s health issues were long standing in nature but limited information had been made available with regards to the severity of his condition and how it prevented him from attending the hearing, his prognosis, ongoing treatment, and when or how things would improve in future. The Panel also noted that, in his postponement request dated 22 September 2017, the Teacher indicated that he required a postponement in order to instruct a representative. The Panel was of the view that the Teacher had had ample opportunity to instruct a representative and noted that no contact had been made with the Presenting Officer or GTCS by any representative on behalf of the Teacher in advance of the full hearing. The Panel noted that an adjournment was opposed by the Presenting Officer and that she wished the hearing to proceed. The Presenting Officer was ready to proceed with the full hearing and a number of witnesses had been arranged to give evidence at it. Adjourning the hearing to a later date would cause considerable inconvenience to the Presenting Officer and to those witnesses. Any adjournment would inevitably result in the hearing taking place no earlier than January 2018. The Panel also had regard to the history of the case. In particular, the Panel noted that the case was referred for a full hearing by the Investigating Panel in November 2015. The allegations related to the period 2011 to 2014. The Panel was aware that case management deadline extension requests had been granted to both the Presenting Officer and the Teacher in the case, delaying the conclusion of proceedings. The Panel noted that the Presenting Officer’s finalised intended case was provided to the Teacher on 10 February 2017 and that a period of 8 weeks was initially granted to the Teacher for a response. Thereafter, an additional 6 weeks was granted to the Teacher with a final deadline of 31 May 2017, however, this deadline was not complied with and a Notice of Respondent’s Case Form was not submitted until 20 September 2017. The Panel noted that the Teacher had been advised of the full hearing dates on 28 April 2017. The Panel was concerned that the Teacher was seeking to frustrate the proceedings and avoid the hearing. Given the time passed since the allegations and the procedural history of the case, the Panel was of the view that there was a significant public interest in the matter being determined as soon as possible. In addition, delay would also have an impact on the Teacher in prolonging proceedings. The Panel noted that a temporary restriction order had been in place since 20 May 2015. The Panel further noted that the Teacher had indicated that he was not going to attend the full hearing and that his engagement in the lead up to the full hearing had been variable. The Teacher had responded to the allegations and had denied them. He had provided a response to the distinct allegations. The Panel was sceptical as to whether or not the Teacher would attend were the hearing adjourned to a later date. The Panel also had regard to the fact it was an impartial and inquisitorial tribunal. It would draw no adverse inference from the Teacher’s absence and would still consider the case fairly and conduct the same process of assessing the evidence regardless of whether or not the Teacher was in attendance. For all of these reasons, based on the information available to it, the Panel concluded that the Teacher had voluntarily chosen not to attend the hearing, that he was unlikely to attend were the hearing reconvened on a later date and that it was just to proceed with the hearing in his absence. Late papers The Teacher requested that the supplementary Notice of Respondent’s Case Form dated 4 October 2017 be admitted as late evidence. The Teacher cited his ill-health and PC problems as the reason why the document was being submitted late. The Panel noted that the response form included detailed responses to the allegations, submissions on fitness to teach, referred to documents and witnesses, and outlined several preliminary issues. The Presenting Officer did not oppose the Teacher’s request to admit the late material. The Panel considered Rule 1.7.22. The Panel decided to allow the late response form to be admitted. During the course of his evidence, Witness A referred to a note that had been prepared by the Teacher at the time of allegation 3 regarding the incident. In response to questioning, Witness A told the Panel that he would be able to provide a copy of the note. The Panel decided to admit the document as a late paper. The Panel considered it to be relevant to the allegation and was of the view that no unfairness would be caused to the Teacher because the note was a contemporaneous account made by the Teacher. Prior to giving his oral evidence, Witness B indicated to the Panel that he had made some minor amendments to his written statement. The Panel admitted the revised written statement as a late paper. Privacy application The Teacher requested that the full hearing be heard in private. The Teacher referred to Articles 8, 14 and 17 of the European Convention on Human Rights (ECHR). The Teacher referred to the impact upon his two children due to negative publicity about him, and his wife’s health. The Teacher also requested that all information related to his health and any personal or family issue be made anonymous in any publication of the outcome. The Presenting Officer opposed the privacy application. She indicated that the reasons set forth by the Teacher in support of the application did not justify the application. However, she agreed that personal health or family matters which might arise in evidence ought to be heard in private. The Panel had regard to Rules 1.7.2 to 1.7.4. The Panel also considered the Conducting Hearings in Private Practice Statement. The Panel noted that the default position is that fitness to teach full hearings be held in public. The Panel was not satisfied that the reasons advanced by the Teacher justified the entire hearing being held in private. The allegations were not intrinsically linked with the Teacher’s health. There was no supporting evidence provided regarding the potential impact of publicity on members of the Teacher’s family. The Panel was mindful of the importance of openness and transparency in GTCS proceedings and was of the view that a compelling reason for holding the hearing in private had not been established and, therefore, the public interest and the interests of the Teacher in the hearing being held in public were not outweighed. However, the Panel did conclude that certain evidence of a personal nature relating to the Teacher’s health and personal family circumstances should be heard in private. The Panel considered that the Teacher’s right to privacy in relation to these matters outweighed the public interest in the evidence being heard in public. The spirit of that decision would be protected by the Convener during the hearing of evidence with the assistance of the Presenting Officer and witnesses. Furthermore, in accordance with the GTCS Fitness to Teach Publication Policy, specific details relating to such matters would not be published in the hearing outcome. Admissibility of evidence The Teacher indicated that he challenged the admissibility of an amount of the Presenting Officer’s evidence. The first issue identified by the Teacher was a reference to alleged events which may have taken place prior to 2 April 2012. This was on the basis that the GTCS Code of Professionalism and Conduct (COPAC) 2012 applied after that date. Before that date, COPAC 2008 applied. The Teacher referred to the concept of natural justice and Articles 7, 14 and 17 of ECHR in support of this particular objection. The Presenting Officer invited the Panel to refuse that objection. She identified a similarity between COPAC 2008 and 2012 and stated that the general principles were the same. The Panel rejected this objection to admissibility of evidence. The Panel compared COPAC 2008 and 2012. The Panel found that the wording of certain parts of COPAC 2012 and 2008 were identical, that one part of COPAC 2012 had very similar wording to COPAC 2008, and that another part in COPAC 2012 had identical wording under a separate sub-part of COPAC 2008. Given the similarities between COPAC 2008 and 2012, the Panel decided that there was no merit in this particular objection. The Teacher objected to evidence from persons or witnesses who were not aware that comments made to Aberdeen City Council were to be made available to GTCS and who did not respond to requests from the Presenting Officer to provide a statement. In essence, the Teacher was objecting to hearsay evidence of what those persons had said. The Teacher referred to Article 6 and 17 of ECHR. The Teacher also referred to the practice of witnesses who are to give evidence before a full hearing providing a signed statement in advance. The Teacher highlighted that he would be unable to cross examine such persons. The Presenting Officer invited the Panel to repel this particular objection by the Teacher. She referred to the established principle that hearsay evidence is admissible and referred to authorities which supported that principle. The Panel had regard to Rule 1.7.17. The Panel also had regard to the Fact Finding in Fitness to Teach Panel Complaint Hearings in Practice Statement. The Panel rejected this particular objection by the Teacher. The Panel would assess at a later stage what, if any, weight to attach to such evidence. The Teacher objected to evidence which he complained was irrelevant and contained prejudicial material. The first item was a report prepared by Witness C of Aberdeen City Council. The second was an email and note of a telephone conversation between a union representative (who had previously assisted the Teacher) and an employee of GTCS. The Presenting Officer invited the Panel to reject the Teacher’s objection so far as it related to the report by Witness C. The Presenting Officer’s submission was that the evidence was relevant to the allegations. The Presenting Officer did not object to excluding the note of the telephone conversation and email. The Panel decided to exclude from its consideration the email and note of the telephone call (pages 104 to 105 of the Presenting Officer’s hearing papers). However, the Panel decided to admit the evidence of the report by Witness C. In the Panel’s view, the report was relevant to the allegations to be considered and it was fair for it to be included. Specification The Teacher made a general challenge to the specification of the allegations. The Presenting Officer invited the Panel to reject this objection. The Presenting Officer submitted that the allegations were sufficiently specific. The Panel rejected the Teacher’s challenge to the specification of the allegations. The Panel found that the allegations were specific and that fair notice had been provided to the Teacher by them. In particular, the Panel noted that in the supplementary response form, the Teacher had been able to provide a detailed response to each separate allegation. Investigating Panel The Teacher invited the Panel to refer the case back to the “investigatory panel”. The Teacher indicated that there was nothing in the Rules that would allow such an action, but stated that it was not specifically prohibited. The Panel was not persuaded by this submission. The Panel noted that the application to return the case to the Investigating Panel relied upon the dismissal of a number of the allegations and that the Panel had refused to dismiss those allegations. Furthermore, the Panel was aware that the Investigating Panel stage in the process was removed when new Fitness to Teach Rules were implemented in August 2017. The Panel did not consider it appropriate to do anything other than to proceed with the full hearing. The Teacher submitted that the Panel members dealing with the procedural matters should recuse themselves from the full hearing. This submission was made on the basis that those Panel members would potentially have been exposed to prejudicial and irrelevant material. The Teacher relied upon Article 6 and 17 of ECHR. The Presenting Officer invited the Panel to reject this particular submission by the Teacher. The Presenting Officer highlighted that the Panel was a professional Panel. The Panel decided to reject this submission by the Teacher. The Panel observed that it was a professional and impartial Panel that would assess the evidence objectively. It would put any potentially irrelevant or prejudicial matters out of its mind. The Panel would have regard to the Rules, Practice Statements and guidance of the Servicing Officer and Legal Assessor as regards procedural and legal matters to ensure there was propriety in the proceedings. Recusal of the Convener The Teacher submitted that the Convener should recuse herself on the basis that the Convener had shown favour to the Presenting Officer in terms of the time allowed for case preparation compared to that afforded to him. The Teacher submitted that the Convener was not neutral on the basis of those earlier decisions. The Presenting Officer invited the Panel to reject this submission. The Panel decided to reject this submission by the Teacher. All of the Panel members were professional and impartial, and would assess the evidence objectively as referred to above. In any event, the Panel noted that a different Convener had dealt with the case management stages which were particularly complained about by the Teacher. Amendment of the allegations Before making its findings in fact, the Panel decided to amend certain aspects of the allegations, namely 2(d), 2(g) and 3. The Panel did so in accordance with Rule 2.8.4 and having received the advice of the Legal Assessor. The Panel considered that no injustice would be caused by the amendments. The amendments to the allegations can be seen below under the “Allegations” heading and a specific description of each amendment is set out in the “Findings in fact” section under the relevant allegation. Allegations The following allegations were considered at the hearing: Between 8 February 2013 and 5 January 2014, whilst employed by Aberdeen City Council at School A, Aberdeen, you failed to maintain the General Teaching Council for Scotland’s Standards for Registration, in the following respects: 2.1.5- Registered teachers have knowledge and understanding of the principles of assessment, recording and reporting You failed to know and understand how to apply the principles of assessment, recording and reporting as an integral part of the teaching process. You failed to have extensive knowledge and a secure understanding of the principles of assessment, methods of recording assessment information, the use of assessment in reviewing progress, in improving teaching and learning. You failed to have knowledge and understanding of the GIRFEC National Practice Model and how to apply this to support teaching and learning. For example: a) National, local and school advice for moderation and verification was not followed. 3.3.1- Registered teachers use assessment, recording and reporting as an integral part of the teaching process to support and enhance learning. You failed to record assessment information in a systematic and meaningful way in order to enhance teaching and learning and to fulfil the requirements of the curriculum and awarding bodies. For example: Pupil scripts were not kept securely and as a result some assessment was not accounted for; Marking of pupil scripts in RME did not comply with guidelines in course documentation and the advice given by the Principal Teacher; National advice relating to closed book assessments in RME was not followed There was not reliable evidence for the National 4 added value unit and as a result some pupils who failed to gain a National 5 award did not achieve a course award for History; 3.4.1- Registered teachers read and critically engage the professional literature, educational research and policy. You failed to read, analyse and critically evaluate a range of appropriate educational and research literature You failed to systematically engage with research and literature to challenge and inform professional practice. For example: you failed to follow the expectations set out in the GTC Scotland Code of Professionalism and Conduct. Between 2011 and 2013, while employed by Aberdeen City Council at School B, Aberdeen, you did instigate inappropriate conversations with colleagues which contained sexual references, including; a discussion in which you referred to the launch of a new range of bras; a conversation with a female colleague in which you made reference to a brothel; in reference to two pupils, stating to a colleague, words to the effect of “Every man’s dream, twins, but not at their age, of course” reciting repeating a joke which you had seen on television of a sexual nature; stating to a colleague, words to the effect of “remember I spoke to you about class 4.1 coming into PSE and taking about ‘sixty-niners’.”; stating to a colleague, words to the effect of, “it’s amazing how sexual girls names have”; after a pupil made a comment about how another pupil’s haircut made her “look like an Egyptian”, you did say words to the effect that “it is possible to get an Egyptian down there along the lines of a Brazilian” in reference to shaving around a bikini line; On or around 4 March 2013 On 1 March 2013, whilst employed at School A, you did make a remark of a racist nature towards a pupil in that you said words to the effect of “Are you sure you are not a terrorist, that’s alright then, at least you are not putting poison on the door handle; On or around 13 May 2013, whilst employed at School A, you did have an inappropriate conversation with a pupil in which you referred to sex and pornography and stated words to the effect of how the pupil would feel if you spoke to her about porn and sex; On or around 30 August 2013, whilst employed at School A, you did stare at the legs of a female colleague and look up her skirt; Between 2011 and 13 November 2012, while employed by Aberdeen City Council at School B, Aberdeen after a pupil made a comment about how another pupil’s haircut made her “look like an Egyptian” you made a grossly inappropriate comment to the effect that “it is possible to get an Egyptian down there along the lines of a Brazilian” in reference to shaving around a bikini line. 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 1.1, 1.2, 1.3, 1.4, 1.5, 1.6 and 2.3 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct. 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 Summary of enquiry prepared by Witness A, dated 8 October 2014 Witness statement of Witness C, dated 8 May 2015 (attended the hearing) Investigation report by Witness C and appendices thereto Letter from Aberdeen City Council to the respondent dated 27 March 2015 Investigatory report by Witness D, and appendices thereto dated 15 January 2013 Email from Representative, SSTA to the GTCS dated 29 September 2015 File note from GTCS dated 30 September 2015 Witness statement of Witness A (attended the hearing) Witness statement of Witness E (attended the hearing) Witness statement of Witness F (attended the hearing) Witness statement of Witness B (revised version admitted late) (attended the hearing) Witness statement of Witness D (attended the hearing) Memorandum dated 1 March 2013 (admitted late) Teacher’s hearing papers Notice of Respondent’s Case Form (undated) Notice of Respondent’s Case Form dated 4 October 2017 (admitted late) Servicing Officer’s hearing papers Notice of hearing dated 29 August 2017 and email delivery/read receipts Postponement request response dated 28 September 2017 Postponement request Letter dated 22 September 2017 from Witness T (Doctor) Summary of evidence Witness D Witness D was a Service Manager in Additional Support Needs for Aberdeen City Council. Witness D had been Deputy Head Teacher at School B from 2004 until 2014. She had been asked to carry out an investigation into concerns raised by colleagues of the Teacher at School B. Those colleagues had stated that they were uncomfortable with conversations which the Teacher had instigated with them. The purpose of Witness D’s investigation was to ascertain the validity of the concerns and to find out what the impact on staff had been. Witness D obtained written statements or accounts from seven members of staff. She reviewed those statements. She then held an investigatory meeting with the Teacher on 19 December 2012. Witness D prepared a report of her investigation which was contained within the Presenting Officer’s hearing papers. The Panel found Witness D to be a credible and reliable witness. The Panel was impressed by her breadth of experience, her knowledge of her colleagues and her knowledge of her pupils at the school. The Panel also noted that Witness D appeared concerned for the Teacher. She answered questions put to her with care, she clarified and expanded upon her witness statement in her answers, and her demeanour when answering questions demonstrated reflection on her part. Witness B Witness B was a Depute Head Teacher at School B, Aberdeen. He had been in post since 2000. Witness B had known the Teacher from earlier in this career and then had further dealings with the Teacher when the Teacher joined School B around August 2012. The witness gave evidence about the allegation 2(a). Witness F Witness F was the Director of Education and Children’s Services at Aberdeen City Council. Her background was as a teacher which then developed into her filling advisory and strategic roles for Local Authorities across the UK. An element of her role as Director of Education and Children’s Services was to conduct disciplinary proceedings. Witness F conducted the Teacher’s disciplinary hearing which was held on Wednesday 18 March 2015. This hearing related to the competency issues contained within allegation 1. Witness F reported the outcome of that disciplinary hearing to the Teacher in a final warning letter dated 27 March 2015 which was contained within the Presenting Officer’s hearing papers. The Panel found Witness F to be a credible and reliable witness. She gave clear evidence to the Panel. Her evidence demonstrated an impressive grasp of the subject matter of the disciplinary hearing, including a clear knowledge of the expectations and responsibilities of a teacher, the processes which a teacher must follow and the consequences for pupils. Witness C Witness C was a Depute Head Teacher at School C, Aberdeen City. He had been in that role since December 2012. He had been charged with the duty of conducting a management investigation into allegations relating to the Teacher’s competence relating to the matters contained within allegation 1. Witness C had been provided with materials from School A and he interviewed a number of witnesses in the course of his investigations. Witness C interviewed the Teacher on 1 December 2014. Witness C prepared a report on his investigations, together with appendices of supporting documentation which were contained within the Presenting Officer’s hearing papers. The Panel found Witness C to be a credible and reliable witness. The Panel noted that Witness C’s investigation had been very thorough and he gave his evidence in a clear and measured way. The Panel also considered that Witness C had been brave in identifying other aspects of the Teacher’s conduct which he felt merited further enquiry and which he cascaded up in the local authority for further investigation. Witness E Witness E was the Principal Teacher of the Faculty of Social Subjects at School A and was the Teacher’s line manager during his time there. Witness E gave evidence about the Teacher’s performance at School A and her own investigations around the subjects which the Teacher had been responsible for. Witness E also gave evidence about allegations 4 and 5 and also generally regarding the Teacher’s conduct at School A in particular, in relation to female members of staff. The Panel found Witness E to be a credible and reliable witness. She made appropriate concessions when she could not answer questions. She impressed the Panel by trying to assist by answering questions as fully as possible. The Panel noted that Witness E showed some empathy towards the Teacher. Witness A Witness A was the Head Teacher at School A. He had taken up his post as Head Teacher in January 2013. Shortly after, the Teacher was transferred to School A in February 2013. The witness gave evidence about issues that existed prior to the Teacher’s transfer and also gave evidence about the competence and conduct issues which arose during the Teacher’s time at the school and as set out in allegations 1, 3, 4 and 5. Witness A had carried out some investigations into the allegations. He also spoke to the Teacher about the allegations. Witness A prepared a summary of his enquiry into the concerns raised about the Teacher which was dated 8 October 2014 and was contained within the Presenting Officer’s hearing papers. Witness A had then invited that an independent person carry out a further investigation having identified that it may not have been appropriate for him to engage in further investigations himself. The Panel was particularly impressed by Witness A. They found his evidence to be very convincing. He was a very credible witness. He demonstrated care for his pupils and staff, including the Teacher. He provided considerable additional detail in his evidence to assist the Panel with the context of certain events, their consequences and enquiries around them. Findings of fact The Panel gave careful consideration to all of the evidence presented and submissions made by the Presenting Officer in making its findings of fact on the allegations. The Panel also had regard to the response provided by the Teacher dated 4 October 2017. 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. Allegation 1 In considering allegation 1, which relates to the Teacher’s professional competence, the Panel had regard to Rule 3.6 of the Rules. In accordance with that Rule, the Panel noted that it was required to determine, in the first instance, whether the Teacher’s professional competence falls below the standards expected of a registered teacher. In addition, the Panel had regard to the GTCS Professional Competence Cases Practice Statement, Part 1 “Fact-Finding”. The Panel was aware that the Teacher held full registration in History and Modern Studies and provisional registration in Religious and Moral Education (RME) and had regard to that when considering the Teacher’s professional competence. The Teacher was alleged to have fallen short of the following parts of the Standards: 2.1.5 Have knowledge and understanding of the principles of assessment, recording and reporting 3.3.1 Use assessment, recording and reporting as an integral part of the teaching process to support and enhance learning 3.4.1 Read and critically engage with professional literature, educational research and policy The allegation provided a number of examples to illustrate in what ways the Teacher had fallen short of these standards and the Panel had regard to the examples when making its findings. In connection with this allegation, the Panel had regard to the evidence of Witness F, Witness C, his report and interview notes, Witness A and his report, and Witness E. In addition, the Panel had particular regard to the response provided by the Teacher in the Notice of Respondent’s Case Form dated 4 October 2017. The Panel decided to approach the decision making process by considering the topic of assessment, recording and reporting as a whole; looking both at the Teacher’s professional knowledge and understanding and professional skills and abilities in this area. The Panel was of the view that the Teacher had not followed national, local and school advice for moderation and verification. The Panel accepted the evidence of Witness A and Witness E with regards to the range of information and guidance that had been shared with all staff including information from the SQA, local authority and school. In addition, the Teacher attended Network events, SQA events and department/faculty meetings at which relevant information was shared and at which the Teacher would have been able to raise any concerns or ask questions if expectations were not understood. This evidence was supported by Witness G’s interview notes, who had also shared relevant information with the Teacher. The Panel noted that Witness A and Witness E were open and honest about the fact that, since the time of the allegations, the whole school moderation and verification procures had been developed to ensure that more robust checks are in place. The Panel considered that this openness and honesty lent weight to their overall assessment of the Teacher’s individual failings with regards to moderation and verification. Whilst there is a department and school responsibility for moderation and verification, the Panel was of the view that the individual Teacher shares that responsibility and ought to follow advice and guidance available and has a professional duty to seek out advice or support where necessary rather than wait for direct instruction from a line manager. In the Panel’s own experience, moderation and verification are integral to the process of assessment at any stage and in all subjects in order to ensure consistency and fairness. The Panel concluded that the Teacher would have been aware of this given his extensive teaching experience, including in the role of Principal Teacher, as well as his work as an SQA marker. The Panel was of the view that there were a number of examples of the Teacher’s failings with regards to moderation and verification that had had a significant impact on pupils. For example, the History National 4/5 prelim had not been cross marked. The Teacher had awarded 76% of pupils an A-C grade, however, following the exam, only 11% of those pupils achieved a pass. In addition, pupil scripts in RME were marked inconsistently and incorrectly, including basic errors in counting up marks and unfairly awarding marks. The Panel concluded that the Teacher had failed to keep pupil work and assessments securely. As a result, some assessments were not accounted for. It appeared to the Panel that the Teacher did not have any systematic process for gathering, storing or collating pupil work. When evidence of pupil work was requested, little or no evidence was ever provided by the Teacher. This included formal assessment work but also jotter/homework evidence. In the Panel’s experience, a systematic approach to gathering evidence is required regardless of whether a teacher is following a unit-by-unit approach or a holistic approach. Although the Teacher claimed to be pursuing a holistic approach to evidence gathering, there was no evidence that this had been done systematically. The Panel noted that the Teacher did not deny failing to secure pupil work and had suggested that this was because (a) he did not have access to secure storage and (b) it was the responsibility of the Faculty Head and/or establishment to secure pupil work. The Panel rejected both explanations provided by the Teacher. Witness A and Witness E explained that secure storage was available to the Teacher within school and Witness A stated that the Teacher’s locked cabinet required to be broken into and no evidence relating to pupil assessment was found within. In the Panel’s view, the storage of pupil work and evidence relating to assessment is the responsibility of the individual class teacher. Even if the Teacher did not know where to securely store the work of his pupils or was awaiting delivery of a secure cabinet for within his own classroom, it was the Teacher’s responsibility to ensure that secure storage space was located to keep pupil work secure at all times. The Panel noted that this expectation was not new to the new curriculum; it is standard and long established practice. The Panel noted that the Teacher stated in his response that there were ongoing security concerns within the school. The Panel did not accept that this was the case as this was contradicted by the evidence of Witness A and Witness E, which the Panel preferred. However, even if that were that the case, in the Panel’s view, that would mean that it was even more important for a teacher to take responsibility for the appropriate and secure storage of pupil work. In the Panel’s view, failure to secure pupil work can undermine the process of assessment and have a significant impact on pupils. In this case, failure to produce pupil assessments meant that a number of pupils could not be awarded a qualification. The Panel concluded that the Teacher’s marking of pupil scripts in RME did not comply with the guidelines in course documentation and the advice given by the Principal Teacher. The Panel accepted the record of the interview between Witness G and Witness C. This is supported by Witness A’s evidence and report which sets out what he had been told by Witness G. The Panel was of the view that there was a lack of fairness, rigour and consistency in the Teacher’s approach to marking. In addition, there were other irregularities demonstrated in the pupil assessment in this subject area including answers being completed in red and in the Teacher’s handwriting. The Panel identified areas of concern regarding marking in the Teacher’s other classes. For example, in History there was a lack of annotation or feedback on pupil work. This made it difficult to establish what pupils’ marks were and what progress had been made. As shown by the record of interviews Witness C conducted with some pupils and referred to in Witness C’s oral evidence, pupils felt that they did not get feedback in the Teacher’s class. It appeared that there had been limited realistic evaluation or self-evaluation of pupil work or understanding by the Teacher. The Teacher ticked the box on the SEEMIS system to confirm that evidence was available to support a pass. However, as Witness E explained, there was no evidence available with the fly sheet for a number of pupils. On some, it stated on the fly sheet that the Teacher had accepted oral evidence from the pupil to support a pass. However, the Teacher did not provide any explanation of what oral evidence had been accepted or how this demonstrated that the pupil had met that standard. The Panel concluded that the Teacher had failed to carry out closed book assessments appropriately or in accordance with national and local advice. The Panel accepted the information contained within Witness C’s report including the record of the interviews with Witness G and the pupils. In particular, “All 7 pupils recall the assessment being carried out in circumstances which do not meet closed book conditions; the majority recall having notes with them for the assessment and some also think that they were able to share ideas with those at the same desk as them (thinking and sharing). None of those pupils interviewed recalled the exam being carried out in exam conditions”. The Panel was satisfied that an assessment conducted in this manner could not be described as closed book or under exam conditions, even on a lay interpretation. The Panel considered that all teachers would be aware of what is expected in terms of closed book assessments. In addition, pupils recalled completing the assessment on more than one occasion. The Panel rejected the Teacher’s explanation that this was due to Witness G insisting that a departmental proforma be used. In his interview with Witness C, Witness G states that the proforma was not a requirement and, in any case, some of the assessments were not on the proforma. The Panel did not consider asking pupils to copy out an assessment from lined paper on to a proforma to be a reasonable explanation for why pupils would complete an assessment more than once: it would be boring for the pupils and not advance their learning. The evidence of Witness A was also that assessments would be accepted on any format, not just a proforma. In the Panel’s view, the way in which the Teacher had conducted assessment provided an opportunity for collaboration and took away from the rigour of the closed book assessment. The Panel was significantly concerned by the impact the Teacher’s lack of professional competence in relation to assessment, recording and reporting had on pupils. The Panel accepted Witness A’s, Witness C’s and Witness E’s evidence that in National 5 History, a number of pupils were unable to achieve a course award. The pupils either hadn’t done the Added Value Unit (AVU) or it had been lost. As a result, when they failed the exam, there was no evidence to use to fall back on. If that had been acknowledged earlier when the Teacher claimed the AVU had been lost, action could have been taken to resolve the issue. The impact on the pupils was illustrated by the difference between pupil achievement in other subjects compared to History which, Witness A explained, was -3.14. He had never seen that difference in results in all the years he had worked. In addition, some pupils failed History and did well in other subjects. Pupils in Higher History were also impacted. Their marks were 15% lower in the Teacher’s part of the course than in other elements. As a result, their overall grade could be reduced by 1 grade band. Witness A explained that the impact on individual pupils included giving up History or repeating it, meaning they could not take a different subject. All of which may have impacted on their further education opportunities. Witness A also had to deal with concerns from parents and pupils regarding the Teacher’s classes, which had an impact on the reputation of the school. The Panel noted that Witness A stated that as a result of the Teacher’s lack of professional competence in relation to assessment, recording and reporting, some pupils may have got an award that they should not have. The Panel considered that this was unfair and had the potential to undermine the integrity of the SQA system. Overall, the Panel was of the view that the Teacher had demonstrated a lack of professional knowledge and understanding and professional skills and abilities in relation to assessment, recording and reporting. The Teacher’s assessment processes were deeply flawed which had a significant detrimental impact on the pupils he taught. The Panel accepted that, at the time, National 4 and National 5 were new qualifications and that there may have been some confusion attributable to their introduction and implementation. However, the failings demonstrated by the Teacher related to fundamental aspects of assessment, recording and reporting that were unchanged by the introduction of new courses such as the storage of pupil work and how to conduct an assessment under exam conditions. In addition, the Panel was satisfied that a significant volume of information and guidance had been provided to the Teacher from the SQA (including as a result of his role as an SQA marker), the local authority and the school with regards to the expectations on him in relation to assessment, recording and reporting. The Teacher did not seek help or support in relation to assessment, recording and reporting and gave colleagues and line managers the impression that he understood the expectations on him and was complying with them. Given the extensive changes, it was incumbent on a teacher to research and understand the new qualifications. Furthermore, other teachers from within the same school and faculty successfully implemented the new qualifications. During the course of the evidence the Panel heard, it became apparent that a number of the witnesses doubted whether the Teacher had completed assessments at all, despite recording that he had the necessary evidence to support unit passes in the SEEMIS system. This was of significant concern to the Panel. It is incumbent on a teacher to reflect accurately pupil results and achievements. Witness A was quite clear in his evidence that he believed records had been falsified. In the Panel’s view, a lack of integrity of this nature undermines the whole examination process. The Teacher’s lack of professional knowledge and understanding with regards to assessment, recording and reporting was illuminated by his responses to the allegations both at the time, during Witness C’s investigation, and in his response to the Panel. The Teacher consistently sought to blame others and failed to acknowledge any individual responsibility. The Panel considered that effective assessment is integral to the process of teaching and learning. A lack of effective and rigorous assessment undermines a teacher’s ability to reflect on his/her teaching and plan coherent and progressive teaching programmes. For the reasons outlined above, the Panel concluded that the Teacher’s professional competence had fallen significantly short of parts 2.1.5 and 3.1.3 of the Standards for Registration. The Panel next considered whether the Teacher had fallen below Part 3.4.1 of the Standards. The Panel concluded that the Teacher had failed to follow the expectations set out in COPAC. The Panel noted that the Teacher had said that he had not been directed to the Standards or COPAC. However, the Panel was of the view that it was part of a teacher’s professional responsibilities to be aware of these documents. In addition, the Panel considered that the Teacher had shown a lack of engagement with professional literature and research with regards to the introduction of the National 4 and 5 qualifications. The Teacher did not engage collaboratively such as in the exam review referred to on page 65 of the Presenting Officer’s hearing papers where the Teacher was unprepared. In the Panel’s view, the Teacher did not engage proactively with developments in education. For the reasons outlined above, the Panel concluded that the Teacher had fallen significantly below Part 3.4.1 of the Standards. Allegation 2(a) The witness, Witness B, gave evidence about an incident on Monday 29 October 2012 which took place during lunchtime in the canteen of School B. The Teachers’ table was near to but separate from pupils’ tables. The Teacher was seated at the table with a Witness H who was a Principal Teacher in Business Studies. Normal casual conversation was taking place when the Teacher interrupted Witness H and began talking about how he had just been telling Witness H that he had witnessed the launch of a new range of bras from the Michelle Mone range in Glasgow during the October holidays and how people in the crowd were taking photos with their mobile phones. Witness H did not react to what had been said. The witness found the comment to be bizarre and considered that there was a sexual overtone to it. The witness endeavoured to change the topic of discussion. The witness later provided a brief report to Witness D on 12 November 2012 regarding the incident. The Teacher was questioned about this incident by Witness D at the investigatory meeting on 19 December 2012. The Teacher indicated that he remembered the event and that he may have mentioned it as he had been standing in Buchanan Street watching the event. The Teacher indicated that he did not consider the comment which he made to contain a sexual reference. In the Notice of Respondent’s Case Form, the Teacher indicated that he recalled a general staff room and staff only dining room conversation regarding the advertising event held by Michelle Mone in Buchanan Street, Glasgow. The Teacher indicated that the event had been mentioned by a colleague who had read about it in the Sunday Herald. The Teacher had then told colleagues that he and his wife had been there. The Teacher then referred to other details of the event. The Teacher’s position was that the comment made was relevant and entirely in keeping with the context of the discussion given that Witness H was the Principle Teacher in Business Studies and that he knew that Business Studies classes had been looking at marketing. Witnes D, in response to Panel questioning, stated that she did not think it would be unreasonable to discuss a marketing ploy with a business studies teacher. The Panel found that a conversation had taken place between the Teacher and Witness H on that particular date. However, no evidence had been led which established that the Teacher had instigated the conversation. Notwithstanding Witness B’s opinion of the comment, it appeared that he had not been present throughout the entire period when the Teacher and Witness H had been talking. Indeed, when questioned by the Panel and on being asked to consider the Teacher’s account of the incident in the Notice of Respondent’s Case Form, Witness B took no issue with the Teacher’s account, except stating that there was no staff dining room and that the incident took place in the school canteen. The Panel noted that no evidence had been led of any account of the incident given by Witness H. The Panel’s view was that it related to a public marketing event and was not a sexual reference. However, the Panel considered that it was an inappropriate topic of conversation that should not have been repeated in an area where pupils were present. Accordingly, the Panel found allegation 2(a) not proved. Allegation 2(b) Witness J, Modern Languages teacher at School B provided a note to Witness D dated 8 November 2012. The note was provided in connection with Witness D’s investigation. The handwritten note referred to an incident which occurred in the academic session from 2011 to 2012. The Teacher had entered Witness J’s classroom. He made a remark about the screensaver on her computer which was of a landmark in Vienna, Austria. He began to tell Witness J about his own visit to Vienna with his wife. He informed her that they had gathered leaflets after their breakfast and one had been for a brothel. The Teacher then continued to advise Witness J of he and his wife’s visit to Germany when they had been left at a train station. It had been a cold evening and they asked someone if there was a waiting room. That person replied, “no, but there is a pornkino over there”. The Teacher said to Witness J, “Only in Germany Ha! Ha!”. The conversation had made Witness J feel uneasy. She formed the view that there was a sexual reference made by a colleague whom she barely knew. She mentioned the incident to two of her colleagues the following day as she had felt uncomfortable with the conversation. She also told another colleague with whom she decided that if a further conversation of a similar nature took place she would bring the matter to the attention of the senior management team. Witnes J indicated that since the incident she had gone out of her way to avoid the Teacher and had made up her mind that if he entered her room again she would make up an excuse and leave. Witness D indicated that the Teacher and Witness J were not in the same Department, that they did not know each other well and did not have much contact. At the investigation meeting the Teacher indicated that he did not remember having that conversation with Witness J. The Teacher indicated that at that time he could not say that it did not take place. The Teacher indicated in the Notice of Respondent’s Case Form that he remembered discussing a Bill Bryson book which had been on Witness J’s desk with regard to a visit he and his wife had made to Vienna. The Teacher indicated that he and Witness J repeatedly worked with each other at School A without any concerns being raised. Witness D stated that that was not an accurate account because Witness J had continued to work at School B until her retirement. The Panel noted the very detailed account given by Witness D in her hand written note. It referred to what had started the conversation, what was said by the Teacher during it and her reaction to the incident. In particular, that involved her advising three colleagues about the incident and their making plans as to how to avoid and prevent any repetition. The Panel also noted the inconsistent accounts provided by the Teacher in relation to this particular allegation. The Panel preferred the account provided by Witness J. The Panel found that the Teacher had instigated the conversation, that it had been inappropriate, and that it had contained a sexual reference. Accordingly, the Panel found allegation 2(b) proved. Allegation 2(c) Witness K was an Art & Design teacher at School B. She had provided a handwritten note dated 15 November 2012 to Witness D during Witness D’s investigation. Witness K indicated that about 4 or 5 months previously within an Art Department classroom she had been talking to the Teacher. At that time, two female twins who were in Third Year walked by. The Teacher stated, “Every man’s dream, twins.” Witness K indicates that she was shocked as the pupils were young and she assumed that the comment was making a sexual reference. The Teacher then stated, “But not at their age, of course.” Witness K felt very uncomfortable. She did not respond. The area was a busy open plan department. She indicated that, as the Teacher turned the corner of the room, he then said quite loudly, “Perhaps its every woman’s too?”. Witness K was very shocked. She spoke with a colleague. She felt angry and she and her colleague thought that they should speak to someone about it. At the investigation meeting with Witness D, the Teacher denied having made the comment about the twins. He indicated that if those comments had been made, then surely the other member of staff had a duty to report him. In the Notice of Respondent’s Case Form, the Teacher again denied having made any reference to the twins and indicated that Witness K had attended a voluntary outing with him at a later time which indicated that she had no issues with him. Witness D indicated that she had no reason to doubt Witness K who had reported the matter. Witness D considered that the allegation was an elaborate story to have made up. Witness D thought it odd that the Teacher, upon being presented with the allegation, had attempted to shift the blame to another member of staff. The Panel preferred the account of Witness K and the evidence of Witness D over the denials made by the Teacher. The Panel was satisfied that the Teacher had instigated an inappropriate conversation with Witness K which contained sexual references of a very disturbing nature. The remarks inferred engaging in sexual activity with two minors. The Panel also found the context of where the comments had been made to be very concerning. The Panel did not consider whether or not Witness K had attended a voluntary outing to have any relevance to the allegations. Accordingly, the Panel found allegation 2(c) proved. Allegation 2(d) Witness K had also reported a separate incident within her handwritten note dated 15 November 2012. That incident had taken place at the beginning of the new term after the summer holidays in her classroom in the Art Department. The Teacher had referred to a joke from a TV Programme on Comedy Central which he repeated twice on two separate occasions. The joke related to David and Victoria Beckham naming their child after the place that their child was conceived namely, Brooklyn. The comedian on TV had seemingly then referred to where his own children had been conceived and the names that he should give them, for instance “Hall Stair Carpet”, and “Front Room Settee”. Witness K thought that the joke was quite funny. However, she did not like the fact that a further sexual reference was being made. Further, she was in the process of preparing for class and children and teachers were milling around. She did not encourage the Teacher. However, he returned a few days later and repeated the same joke again. Witness K acted as if she were busy and indicated that she had heard it before. She indicated that she was fed up with the Teacher’s one track mind. She felt silly about the Teacher constantly wittering on about such things to her. At the investigation meeting with Witness D, the Teacher had no specific memory of this particular incident. However, he could not deny the incident as he was aware of the particular joke referred to. In the Notice of Respondent’s Case Form, the Teacher stated that Witness K did not, at any point, indicate that she was unhappy or uncomfortable with the particular joke. He indicated that she had left Aberdeen City Council before any mention of her complaint was made to the Teacher. She had also volunteered to attend an all-day out of school visit with the Teacher after the alleged conversation had taken place which indicated that she was not uncomfortable working with the Teacher. Witness D confirmed that Witness K did leave School B but not before the complaint was raised with the Teacher. Witness D perceived two strands from the incident. The first was that it was not a one off but part of a pattern of behaviour by the Teacher. The second related to Witness K’s concern for the children she taught. Witness D also observed that Witness K had felt that she had contributed to the situation with the Teacher because of earlier unrelated conversations she had had with him. The Panel considered that Witness K’s handwritten account of these events had a ring of truth. Again, the Panel preferred her account and the evidence of Witness D over the denials and explanations provided by the Teacher. The Panel found that the Teacher had instigated the conversation with Witness K. The Panel found that the conversations were inappropriate and contained sexual references. They were inappropriate due to their sexual references in the context of their being made in a classroom when pupils and other teachers were in the vicinity. The Panel noted that the particular joke had been repeated. Accordingly, the Panel amended the particular allegation in terms of Rule 2.8.4 by deleting the word “reciting” and replacing it with the word “repeating”. The Panel found allegation 2(d) proved as amended. Allegation 2(e) Witness L was a Principal Teacher of Guidance at School B. She provided a handwritten note dated 13 November 2012 relating to incidents involving the Teacher. She had passed this note to Witness D as part of Witness D’s investigation. Witness L reported that on or around 13 September 2012, in an upstairs corridor at the school, she met the Teacher whilst she had been on her way to teach a class. The Teacher then said to her, “Ah, Witness L, just the person. Remember I spoke to you before about 4.1 coming into my class from PSE and talking about ‘sixty-niners’ well I had to have words with [two pupils] for shouting out sixty-nine when I walked into their class.” Witness L indicated that she would reinforce with both pupils that shouting obscenities to people could land them in trouble. Witness L reported the incident to Witness D. Later Witness L had to retell the encounter. She felt very uncomfortable when the Teacher said what he did to her. She was of the opinion that it did not feel right, necessary or appropriate. The Teacher was not asked about this particular matter during the investigation meeting with Witness D. In the Notice of Respondent’s Case Form, the Teacher indicated that he found it astonishing that his concerns about unsuitable comments by pupils in the corridor and his class which originated in the PSE class should be used as an allegation against him. He indicated that he had been asking a colleague who taught PSE about the unsuitable reactions of the pupils. Witness D’s view in evidence was that the issue here was the repeated occasions when information was brought to the Principal Teacher of Guidance. She considered it unusual for pupils to carry on discussions from PSE into another class. It appeared that no other issues were being raised with Witness L other than this particular matter. Witness D linked the behaviour of the children to the limited respect shown to the Teacher by the children and his management of the children. The Panel found that the particular conversation had taken place. Not only did Witness L speak to it but the Teacher accepted that it had happened. However, the Panel was not persuaded that the conversation was inappropriate. The Teacher was raising matters to do with the behaviour of children with a Guidance Teacher. The Panel found allegation 2(e) not proved. Allegation 2(f) Witness L had reported a further incident within her handwritten note. The incident had occurred before the October holidays in 2012 and possibly sometime during the week beginning 8 October 2012. The location of the incident was in the guidance base at the end of the school day. The Teacher had entered the guidance base to advise Witness L of an incident involving a pupil. Another teacher, Witness M, was present. The Teacher then said something like, “it’s amazing how sexual girls’ names have ….”. Witness L at that point held up her hand and asked the Teacher to stop. Witness M left the base at that point. The Teacher then continued to say, “Oh but I read it in the Times Ed.” Witness L interrupted him and said, “I don’t want to know.” The Teacher continued to say, “Oh but it’s worth a read.” Witness L replied, “I don’t get any newspapers.” The Teacher then said, “Oh but you can access it online.” Witness L continued about her business and ignored the Teacher and he eventually left the base. Witness L felt extremely uncomfortable about the language used by the Teacher. She felt that the conversation was completely inappropriate. She was concerned that the Teacher had not stopped when asked to and continued regardless. Witness L immediately reported the incident to Witness D. Witness L further stated that she was extremely wary when the Teacher approached her as she was uncertain about what he was going to say. Witness M also provided a note dated 13 November 2012 to Witness D in the course of her investigations. She referred to the incident described by Witness L. She stated that the Teacher had attended the guidance base to see Witness L about a pupil. There was then a routine exchange between them. The Teacher then embarked upon a conversation about an article concerning young girls becoming sexualised too early. That reference had had no bearing on what had been discussed before. Witness L made it clear several times to the Teacher that she did not want to discuss the matter and that she repeated, “I don’t want to know” but that the Teacher had persisted with his attempts to discuss it. Witness M had found it to be a bizarre episode. During the investigatory meeting with Witness D, the Teacher indicated that he recalled mentioning the particular article to Witness L and advised that the article was in relation to the levels of online bullying. The Teacher stated that Witness L had indicated that she did not read the publication. The Teacher stated that he had not felt that Witness L was communicating that she had not wanted him to continue the conversation. In the Notice of Respondent’s Case Form, the Teacher recalled discussing a Times Education supplement article with a Guidance Teacher. The article related to sexual inequality and teenage girls being mistreated. He viewed the discussion as a professional one and not inappropriate. The Teacher was bewildered and alarmed by the manner in which that discussion had been taken entirely out of context. He felt the article to be particularly relevant due to concerns raised by the local Social Work Department about a number of pupils at School B. Witness D in her evidence indicated that it was not unusual to raise an issue appearing in the Times Educational Supplement if it related to piece of professional reading. However, she reiterated that that had not been Witness D’s impression of the conversation. Further, she had no knowledge of concerns raised by the local Social Work Department nor what link the Teacher would have had the local Social Work Department. The Panel was satisfied that the conversation had taken place and that it had been instigated by the Teacher. However, the Panel was not satisfied that the conversation was inappropriate. The conversation instigated by the Teacher had been interrupted by Witness L. In addition, the Panel noted that Witness M had left the room and had not been present for the entirety of the conversation. Accordingly, the Panel could not conclude that the comment made was necessarily of a sexual nature. Accordingly, the Panel found allegation 2(f) not proved. Allegation 2(g) Witness M had referred to a separate incident within her note dated 13 November 2012. This separate incident related to a report which a pupil had made about comments made by the Teacher to a Fourth Year pupil. Another pupil had made an innocent comment to the Fourth Year pupil that her new haircut made her, “look like an Egyptian.” The Teacher was reported to have quickly moved the discussion on to how it was possible to get an Egyptian “down there” along the lines of a Brazilian namely, shaving around the bikini line. Witness M had been present when a statement was obtained from the pupil. A child protection issue had been raised as a result of the incident. Witness D gave evidence that she had spoken to both the Fourth Year pupil and the Teacher in connection with the incident. The pupil was a vulnerable child. She was very articulate. Her response had been to ask why would the Teacher say what he had said. A view was formed that it would have been difficult for a conversation to progress from a discussion about a haircut to discussion about shaving the pubic area. In the Notice of Respondent’s Case Form, the Teacher indicated that this matter had been taken out of context by the pupil. He indicated that the pupil had known behaviour and emotional issues. The Teacher stated that he had been looking over work on Brazil with an Access 3, Social Subjects class during the previous period. He was a central verifier for the subject and the school had been selected for verification. The class were studying Brazil so it had been fresh in his memory. He had been pointing at another girl’s desk at the front of the room. He stated that this particular matter had not been investigated by Aberdeen City Council. The Panel considered the manner in which the allegation was framed. There was no evidence that the comment allegedly made by the Teacher was made to a colleague. It was finely balanced, however, the Panel could not conclude that the alleged comment was a sexual reference. However, the Panel’s view was that such a comment could be interpreted as being a sexual reference which, in the circumstances, the Panel found particularly alarming. The Panel was satisfied that the particular comment was made by the Teacher to the pupil. The Panel was also satisfied that the comment was grossly inappropriate. This was due to the fact that the comment had been made to a pupil, in a classroom, with other pupils in earshot and that it refers to an intimate part of the body. The Panel also found it particularly odd as to how such a comment would follow the previous observation about a haircut. The Panel found the conduct during this particular incident to be particularly serious and concerning. In terms of Rule 2.8.4, the Panel amended allegation 2(g) so that it is now contained within a new allegation, allegation 6. Allegation 6 contains a more precise time period when the allegation took place as well as the capacity which the Teacher held during that period. The allegation contains a very similar factual narrative with some corrections. It clarifies that the comment was not made to a colleague. It classifies the comment as being grossly inappropriate as opposed to inappropriate but does not classify it as containing a sexual reference. The Panel found allegation 6 proved. Allegation 3 The witness, Witness A, provided evidence about this particular allegation. It was reported to Witness A that on 1 March 2013 when the bell went at the end of form time, whilst the Teacher was finishing registration, some pupils stood up. He told them to sit down and not to leave. A pupil reached for the door. The Teacher at that point made a comment to the pupil in relation to him being a terrorist and putting poison on the door handle. A witness had stated that the Teacher said, “Are you sure you are not a terrorist, that’s alright then, at least you are not putting poison on the door handle.” The pupil was not a Caucasian child. The original report of the incident had come to Witness A that day from a Deputy Head Teacher. Witness A copied a Memo to the Teacher for his comments. The Teacher provided Witness A with his handwritten comments which he signed and dated 1 March 2013. The Teacher indicated that the pupil was sitting at the back of the room during form time. The Teacher told the pupil to take his jacket off. The pupil for some reason then touched the door handle and, when the Teacher looked surprised, the pupil said it was part of a game. The Teacher said, “That’s alright then, at least you are not putting poison on the door handle”. The Teacher said this with a smile and in a light-hearted manner. The Teacher also explained at that point that some people had planned to do so to cause terror in Japan and he did not think they, namely the pupils, were trying to kill him. Witness A, when questioned by the Panel, indicated that it was the pupil himself and at least two others who had said that the words, “You are not a terrorist” were said by the Teacher. The class was a spirited class. The three or four pupils who were involved were good friends. Witness A thought that there was the potential for collusion between them but he thought there was enough corroboration about what the Teacher had allegedly said. This was reinforced by the fact that the pupil had complained to his Guidance Teacher. It was important in making the assessment that the pupil involved was not a Caucasian child. Further, the pupil himself had considered that what was said to him was said as a result of his ethnicity. The school had then required to go through the racial monitoring procedure. In the Notice of Respondent’s Case Form, the Teacher indicated that a misunderstanding had arisen following an innocent comment made by him to pupils who were tampering with a door handle to a classroom. He had remarked to the pupil, “Am I that bad that you are putting poison on the door handle”. The remark related to a film (Jackal, 1997) where an international assassin had poisoned people by putting the poison on a door handle. In the film, both the poisoner and the victims were white. The Teacher was at a loss to understand the alleged link to racism as no evidence was ever produced. Further, the Teacher stated that Witness E brought this matter up and not Witness A. The Panel noted that the Teacher had provided two separate and inconsistent accounts relating to this particular incident. The fact that the Teacher’s accounts were inconsistent undermined the Teacher’s challenge to and denial of the allegation made. On the other hand, the Panel observed the source of the evidence in support of the allegation and the evidence itself. The source was Witness A who had investigated the allegation. The Panel had found him to be a very convincing and impressive witness. He struck the Panel as caring for both his pupils and staff. He had not absolved himself nor his employers from responsibility for some events which had occurred during the Teacher’s time at the school. He had also recognised that it had been appropriate for him to step back from conducting a more detailed investigation into the Teacher’s conduct. Accordingly, the Panel placed considerable reliance upon his evidence. He had spoken to the pupil who had made the allegation. He had also considered the other evidence. The Panel also noted what had been reported as having been said and considered it to be an unusual allegation to have been fabricated. The Panel noted that there was some corroboration found by Witness A and acknowledged his view on the credibility and reliability of that further evidence. Accordingly, the Panel was satisfied that the remark had been made by the Teacher towards the pupil. The Panel was further satisfied that the remark was of a racist nature. The context of the allegation was important given terrorist incidents which were being reported at the time, the fact that the child was not Caucasian, the words used and what they describe and, finally, the pupil’s reaction to the remarks. In particular, the Panel observed that the pupil had reported the incident to a Guidance Teacher. The Panel found this to be a very concerning incident. As the Panel identified the specific date of the incident from the evidence, it amended the allegation in terms of Rule 2.8.4 by deleting the “On or around 4 March 2013” and replacing it with “On 1 March 2013”. Accordingly, the Panel found allegation 3 proved as amended. Allegation 4 Evidence was provided by both Witness E and Witness A about this incident. Witness E gave evidence of a report made to her by another teacher at the school, Witness N. In May 2013, an incident had taken place involving the Teacher and a very vulnerable young boy who was on the autistic spectrum. He was just thirteen at the time of the incident. It was reported that the Teacher had heard the pupil talking about “Television X”. This television channel was one which contained sexual reference and pornography. The Teacher had decided that it was necessary to deal with the situation himself but asked Witness N to accompany him to discuss the situation with the pupil. Witness N was of the view that the Teacher was being very blunt with the pupil in talking about the pupil’s comments. The Teacher repeatedly referred to the words sex and porn. The Teacher asked the pupil how the pupil would feel if the Teacher were to speak to the pupil’s mother like that and speak to her about porn and sex. Witness N described the pupil as becoming very distressed. Witness E was of the view that the Teacher had made a bad decision by taking it upon himself to speak to the pupil. Her view was that the proper way for him to deal with the situation would have been to say that the comments were not acceptable and that he would need to speak to one of the Guidance Teachers to have a word with the pupil. Witness A gave evidence about what he had been told about the incident, which was in keeping with what Witness E had said. Witness A had spoken to the Teacher about this. The Teacher had informed him that he did not wish to speak to the pupil alone about the matter. The Teacher thought that it was right that he asked another teacher to witness the conversation with the pupil. Witness A’s view was that he could not criticise the Teacher about that decision. Witness A’s view was that it would have been a better decision to speak to one of the Guidance Teachers about what the pupil had said and for them to deal with the situation. Witness A considered it to be a difficult situation to deal with. He thought that it was important that someone followed the issue up with the pupil. Witness A was pleased that the Teacher had not chosen to have the discussion with the pupil on his own. The Panel had some concerns about the manner in which the Teacher had chosen to deal with a vulnerable pupil and the manner in which he spoke to that pupil. However, the Panel also considered the views of Witness A that he could not necessarily criticise the Teacher’s decision to speak to the pupil in the company of another teacher about a matter which should have been addressed. The Panel linked this particular incident to the other concerns that there had been relating to the Teacher’s competence and the behaviour management problems that he had been experiencing. The Panel had not been provided with an account from Witness N or the pupil. The Panel had no evidence as to why the pupil was upset and concluded that it was possible that the pupil might have been upset because his conduct was being criticised or for other reasons. Accordingly, the Panel found allegation 4 not proved. Allegation 5 The witness Witness E spoke about this allegation. A teacher, Witness P, had reported to her that the Teacher had been looking at her legs. Wutbess E had completed an entry in her personal chronology of observations regarding the Teacher dated 30 August 2013 which read “Witness P reported to me that she was unhappy that she had caught David McGhee ‘staring at her legs and looking up her skirt’ on 2 occasions. I told her to report the matter to SMT.” The witness Witness A gave evidence that this allegation was reported to him by a third party. Other female colleagues reported that they too felt uncomfortable around the Teacher. None of those persons provided full statements to Witness A. Witness A asked the Teacher about this allegation. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX Witness A was given advice from his manager to deal with the issue by providing support to the Teacher. XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXX He stated that it was possible that Witness P had misinterpreted the situation. The Panel noted that no direct account nor note of the incident had been provided by Witness P. Further, the Panel observed that some explanation for that type of behaviour had been provided by the Teacher by reference to medication. The fact that he had been on medication was supported by Witness A’s evidence. However, no independent and discrete medical evidence had been provided around this particular allegation. The Panel also noted that Witness A had been advised to deal with this incident by providing support to the Teacher. The Panel was not satisfied that they had heard sufficient evidence to find this allegation proved. Accordingly, the Panel found allegation 5 not proved. Findings on fitness to teach Given that the Panel found that some of the allegations were proved, the Panel required to make findings regarding the Teacher’s fitness to teach. The Presenting Officer did not lead any additional evidence at this stage. In the Notice of Respondent’s Case Form, the Teacher had set out arguments regarding fitness to teach. They were as follows: Witness F, Aberdeen City Council did not dismiss the Teacher nor did she consider the matter worthy of reporting to GTCS, as she explained in a conversation with a Representative of SSTA and was not aware at the time of any other disciplinary hearing. The time that had elapsed since the alleged events took place and the fact that there had been no repeat of any of them. The Teacher qualified as a History teacher in 1991. He had been a probationer from 1989 to 1991. The Teacher is currently employed by Aberdeen City Council as a History teacher having worked for them since 1992. He had now achieved full registration in the additional subject of Modern Studies. The Teacher is working towards full registration in relation to religious and moral education. The Teacher had obtained the Open University Diploma in Religious Studies and a Diploma in Philosophy from St Andrew’s University at his own expense to meet the needs of School D. The Teacher had been employed as both principal teacher and as a teacher by Aberdeen City Council. He had completed study towards a Scottish Government funded Masters Degree in Education awarded by the Open University. He had been an SQA marker for National 5 History, Standard Grade and Higher History. He was an SQA central moderator for Access 3 social subjects for eight years and he was also an internal verifier for National 5 History for Aberdeen City Council whilst at School B. XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX School A was his third school placement within a three-year period. He had previously taught at School D and School B. He had experienced the re-deployments to School B and School A as highly stressful events XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX The Teacher felt vulnerable to possible negative perceptions of others and feared that they would reject him and then complain that he had “transgressed” departmental norms of behaviour or questioned his managers. He had also had significant periods of absence due to ill-health and feared disciplinary action would be taken by his employers if he was to suffer further ill-health absences. No actual job existed at School A and the Faculty there had been worried about their positions following his transfer there. The Head Teacher there had tried to prevent the move. Witness R had told the Teacher that there was a genuine vacancy for him and this claim was repeated by Witness S to both the Teacher and a Representative of the SSTA at a meeting about the Teacher being compulsory transferred. The Teacher also invited the Panel to note that despite his reservations about the Teacher coming to School A, Witness A had been very welcoming and supportive. No pupils were harmed in any way in relation to the allegations. The Teacher had always been very active in the extracurricular life of every school he had taught in. The Teacher invited the Panel’s attention to medical information which had been provided in the Notice of Response form with regard to medication. The Teacher indicated that he planned to resign from Aberdeen City Council’s employment at the end of October 2017 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Since starting teaching in 1990 the Teacher had always been keen to involve himself in new developments and had been an active member of both SATH and MSA even travelling from the Uists to attend when teaching. He had previously been involved in teacher training at Northern College and then Aberdeen University. This demonstrated his involvement with the profession out with the classroom setting. If given a fresh start the Teacher would aim to continue such involvement. The Teacher had been very active in voluntary work outside school in connection with his local church, the Rotary Club and the Scouts. Professional competence Having found that the Teacher’s professional competence fell short of the standards expected, the Panel moved on to consider the Teacher’s current fitness to teach. The Panel had regard to the Professional Competence Practice Statement, Part 2 “Fitness to Teach”. The Public Services Reform (General Teaching Council for Scotland) Order 2011 states that an individual is unfit to teach if GTCS considers that his/her conduct or professional competence falls significantly short of the standards expected of a registered teacher. An individual’s fitness to teach should be considered impaired where GTCS considers that the individual’s conduct or professional competence falls short of the standards expected of a registered teacher. The Panel considered that the Teacher’s professional competence fell significantly short of the standards expected of a registered teacher at the time of the allegations. The Panel formed this view having regard to the nature and seriousness of the shortfalls identified. As explained in relation to the Panel’s findings in fact regarding allegation 1, the Panel concluded that the Teacher had fallen significantly short of Parts 2.1.5, 3.3.1 and 3.4.1 of the Standards and that had had an impact on pupils. The Panel was of the view that the shortfalls identified with the Teacher’s professional competence could be remedied. However, the Panel was not satisfied that the Teacher had taken steps to remedy the shortfalls in his professional competence and was therefore of the view that reoccurrence was likely. The Panel had regard to the points put forward by the Teacher in his response dated 4 October 2017. The Panel noted that the Teacher referred to his health and stated that he had been taking a range of medication. The Panel, however, was not satisfied on the evidence available that the shortfalls in the Teacher’s competence could be attributed to his health or medication at the time. The Panel was not provided with any medical evidence relevant to the particular time. The letter available to the Panel from Witness T (doctor) dated 22 September 2017 contained no specific detail regarding the history of the Teacher’s health or any indication that his health was a significant causative factor in the professional competence issues identified. The Teacher had provided links to various websites regarding medications and their potential side effects, however, there was no confirmatory evidence available to the Panel that (a) the Teacher had been prescribed the medications referred to at the relevant time or (b) the extent to which any of the side effects listed were experienced by the Teacher. Even in the event that the Teacher’s health contributed to the professional competence issues identified, the Teacher had not demonstrated insight or remorse into those issues. The Teacher sought to blame others for failings in his own professional practice. Of significant concern to the Panel was the Teacher’s failure to acknowledge the impact on pupils, stating instead that no pupils were harmed. In the Panel’s view, this lack of insight or remorse indicated to the Panel that there was a significant risk of reoccurrence. The Panel noted that the Teacher stated that a period of time had elapsed since the allegations and that there had been no repeat. The Panel noted that for a significant period since the allegations the Teacher had not been teaching. In addition, the Panel noted from the evidence of Witness E that upon his return to work April 2016 and November 2016 similar issues with regards to the Teacher’s professional competence were identified. The Panel noted from Witness D’s evidence that the Teacher had a history of competency issues regarding a range of issues that she had been involved in supporting him with throughout his time at School B. The Panel did not consider the outcome of the local authority disciplinary process relevant to its consideration of the case. The Teacher had referred to his long career, work with the SQA, extracurricular commitments and community voluntary work. The Panel noted these positive aspects, however, did not consider that they demonstrated remediation on the part of the Teacher. Given the nature and extent of the shortfalls in the Teacher’s professional competence together with the impact on pupils and the risk of repetition, the Panel was of the view that the public interest demanded a finding of unfitness to teach in relation to the Teacher’s professional competence. Such a finding was required in order to protect pupils from educational harm and to protect the reputation of teaching as a profession and GTCS as the regulator. Conduct In considering the Teacher’s fitness to teach in light of the conduct allegations that it had found proved, the Panel had regard to the GTCS Indicative Outcomes Guidance. In assessing fitness to teach in relation to the conduct allegations the Panel required to take account of the way in which the Teacher had acted or failed to act. The Panel noted the number of allegations against the Teacher. The Panel also noted the time period over which those allegations had been committed. The Panel considered the nature of the allegations and their gravity. The Panel observed the repeated nature of conduct of a similar nature. In particular, the Panel observed that many of the allegations involved a course of conduct of a sexual nature towards female colleagues. The conduct also included inappropriate conversations with pupils. One of them had been racist in nature. The Panel also noted the general body of evidence distinct from the particular allegations that the Teacher’s female colleagues at both School B and School A had raised concerns regarding his behaviour towards them. The Panel concluded that the Teacher’s conduct at the time of the allegations fell significantly short of the standards expected in that it breached Parts 1.1, 1.2, 1.3, 1.4, 1.5, 1.6 and 2.3 of COPAC 2012 and/or Parts 1.1, 1.2, 1.3, 1.4, 1.5, 1.6 and 2.4 of COPAC 2008. The Panel then considered the Teacher’s fitness to teach at the time of the hearing and how he would be likely to behave in the future. The Panel concluded that the shortfalls identified in the Teacher’s conduct were remediable. However, the Panel was not satisfied on the basis of the evidence before it that those shortfalls had been remedied. As a result, the Panel was of the view that there was a high likelihood of recurrence. The Panel concluded that the Teacher had not demonstrated that he had any insight into his conduct. The conduct found proved persisted over a period of years whilst at different schools. The conduct had persisted notwithstanding that Witness D had conducted an investigation into the Teacher’s conduct whilst at School B. That investigation had resulted in a disciplinary hearing held by Witnessn Q on 7 March 2013 resulting in a first level written warning dated 8 March 2013 being issued to the Teacher. The Teacher’s conduct continued following his transfer to School A and when the Teacher was aware that his conduct was being scrutinised. The Panel found that no remediation had been demonstrated by the Teacher. The Panel had not been provided with any up to date information as to how the Teacher was conducting himself. Separately, whilst the Panel had received no medical evidence directed to the particular allegations, the Teacher had indicated that his health generally was an issue for him. The Panel had sight of a letter from Witness T (Doctor) dated 22 September 2017. It did not provide a specific diagnosis nor the severity of any condition. It did not set out what, if any, impact any condition had or would have on his conduct. It did not detail a prognosis nor timetable of a treatment plan. As expressed in relation to the Teacher’s professional competence, based on the medical evidence available, the Panel could not identify any clear link between the Teacher’s health and his conduct nor confirm if or how things had moved on since the time of the allegations to remove the risk of reoccurrence. The Panel was also aware that there had been lack of genuine remorse shown by the Teacher in connection with particular allegations and generally. The Teacher often responded to an allegation by indicating that he apologised if he had caused offence rather than apologising without qualification. The Panel concluded that the allegations found proved were serious. They had caused upset to pupils and concern to the Teacher’s professional colleagues. The allegations indicated a pattern of behaviour by the Teacher. The Panel also considered the public interest in its assessment of the Teacher’s conduct. The Panel had in mind the protection of the members of the public and in particular children and young people, the maintenance of the public’s confidence in the teaching profession and in GTCS as a professional regulator the need to declare and uphold proper teaching standards and the deterrent effect that any determination may have upon other GTCS registrants. Taking all of these matters into account, the Panel concluded that the Teacher had conducted himself in a sustained manner over a period of time and in a way that fell significantly short of the standards expected of a registered teacher. There had been no steps taken by the Teacher to remedy his conduct and the risk of reoccurrence remained high. The Teacher’s conduct was fundamentally incompatible with his being a registered teacher and he is currently unfit to teach. The Panel concluded that both the Teacher’s professional competence and conduct fell significantly short of the standards expected and, therefore, found that he is currently unfit to teach. Disposal As the Panel determined that the Teacher is unfit to teach, in accordance with the terms of Article 18(2)(b) of the Public Services Reform (General Teaching Council for Scotland) Order 2011, it directed that the Teacher’s name be removed from the Register. Once the Teacher has been removed from the Register, the Teacher remains so removed unless and until an application for re-registration is made by him and a Fitness to Teach Panel directs that the application be granted. The Panel directed that the Teacher should be prohibited from applying to be restored to the Register for a period of 2 years from the date of its decision. The Panel had regard to the Indicative Outcomes Guidance in selecting the time period. The Panel considered that the allegations were particularly grave. The Panel considered that no factors existed which would justify their selecting a shorter period. In particular, the Panel had in mind the absence of insight, remorse and remediation demonstrated by the Teacher. Appeal The Teacher has the right to appeal to the Court of Session against the decision within 28 days of service of the Decision Notice. The Teacher will remain on the Register until the appeal period has expired and any appeal lodged within that period has been determined. Notwithstanding the Teacher’s right to appeal, the decision takes immediate effect. The decision in this case is currently subject to appeal to the Court of Session.