Home > Regulation > Outcomes > Decision - Teacher A General Teaching Council for Scotland Fitness to Teach Panel Outcome Panel Meeting - 14 October 2020 Teacher Teacher A Registration Number XXXXXX Registration category Primary Panel Nasreen Anderson, Brian Feeney and Catriona McDonald Legal Assessor Gareth Jones Servicing Officer Kirsty McIntosh Presenting Officer Gary Burton, Anderson Strathern LLP Teacher's representative Alastair Milne, Balfour + Manson LLP Any reference in this decision to: 'GTCS' means the General Teaching Council for Scotland; the 'Panel' means the Fitness to Teach Panel considering the case; and the 'Rules' (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2017 or refers to a provision (or provisions) within them. Background The Panel Meeting was arranged to consider the following: An application made by the Presenting Officer for the Full Hearing to take place virtually by way of Microsoft Teams. Evidence In accordance with Rule 1.7.17, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the meeting: Virtual Hearing Application by the Presenting Officer, dated 15 September 2020 Appendix to Presenting Officer Application, dated 15 September 2020 Teacher’s Response to Application, dated 2 October 2020 Application and Response The Panel agreed with the submission made in the application lodged by the Presenting Officer that Rules 1.7.6 and 1.7.7 allow for a hearing to be conducted virtually. These Rules state as follows: Rule 1.7.6 – All or any part of a hearing may be conducted by use of electronic communications provided that – The Panel has given the parties an opportunity to make representations on the matter and the Panel considers it just and equitable for electronic communications to be used; The method used allows the parties, the Panel and any witnesses to hear each other; and Where all or any of the part of the hearing is to be held in public, the method used also allows the public to hear proceedings. Rule 1.7.7 – Where all or any part of a hearing is conducted by use of electronic communications, for the purpose of these Rules, the meaning of being ‘present’ at a hearing (and any related expressions) will be construed accordingly. The Panel was satisfied that both parties had been given an opportunity to make representations because in addition to the application by the Presenting Officer, the Panel had been provided with a response from the Teacher’s Representative objecting to the application. It was clear to the Panel from reading the application and the response, that the parties were in agreement about a number of matters that are relevant when determining whether it would be just and equitable for electronic communications to be used. By reference to the Use of Electronic Communications in Hearings Practice Statement (August 2020), the Presenting Officer highlighted the following factors: that the Teacher is represented; that the hearing could be concluded within 3 days; that the issues in dispute are narrow (as set out in the application); that it was envisaged that both GTCS witnesses would take no longer than 1-1.5 hours including cross-examination; that neither of the witnesses for GTCS have any needs that would make a virtual hearing unsuitable; that the Panel at the hearing can adequately assess the credibility and reliability of witnesses despite the virtual nature of the hearing; that the hearing will be in private; that the combined bundles of papers are limited and will be made available to witnesses; and that the GTCS witnesses will have access to appropriate facilities to allow them to participate in a virtual hearing and a check can be made in advance of the hearing to ensure that the Internet connection is suitable and working. On page 1 of the Teacher’s response, the Teacher’s Representative confirms that the Teacher is represented and agrees with the submissions made by the Presenting Officer relating to: the nature of the issues to be determined at the hearing; the estimated length of the hearing; the duration of witness’ evidence; and the fact the hearing will take place in private. However, the Teacher’s Representative objects to the application on the basis that the Panel might not be able to adequately assess the credibility and reliability of witnesses at a virtual hearing, including the demeanour of the witnesses. It is further stated that the Teacher’s internet connection is regularly unreliable, particularly when using Zoom, and that solutions to overcome these administrative issues, such as the Teacher travelling to Edinburgh from [redacted] where she is based, might not be possible depending on the restrictions in place at the time. The Teacher’s Representative suggests instead that consideration of the Presenting Officer’s application should be continued for 6 months and revisited after that period, in the event it is still not possible for the hearing to be conducted in person. Decision Having carefully considered both the application and the written response by the Teacher’s Representative, the Panel concluded that it is just and equitable for the Full Hearing to take place virtually by way of Microsoft Teams. In reaching that conclusion, the Panel disagreed with the submission made by the Teacher’s Representative that the Panel at the Full Hearing would be unable to make a proper assessment of the credibility and reliability of witnesses in the event the hearing is conducted virtually. The Panel was familiar with Microsoft Teams as a meeting platform and considered that it is entirely possible using this platform to see and hear a witness clearly. A check could be carried out in advance of the hearing to ensure that the connection is suitable and on the basis that it is, all parties would be in a position to ask questions of the witnesses. Furthermore, the Presenting Officer referred to a number of items of case law concerning virtual hearings, which support the view that a virtual hearing in the Teacher’s case is entirely appropriate. The case law referred to is summarised on pages 5 and 6 of the application and forms the basis for the submissions that follow in the application. In particular, the Panel found the decision of A Local Authority v a Mother  EWHC 1086 and the commentary therein to be helpful in deciding the application because the decision emphasises that demeanour will often not be a good guide to truthfulness and highlights the difficulty in stating, as a generality, that a remote hearing is less effective in getting to the truth than a hearing conducted in a courtroom (paragraphs 23 to 24 and 27 to 29). The Panel also noted that there was no reason advanced by the Teacher’s Representative for why the Teacher would be unable to participate in a virtual hearing, other than it being stated that she might have a problem with her internet connection. Whilst that is plainly a relevant factor, the Panel considered that there would be ample opportunity between this meeting and the date of the Full Hearing for any administrative problems to be overcome, whether that be by the Teacher improving her internet connection; finding a more suitable location close to home to join the hearing or travelling to Edinburgh and participating in the virtual hearing at her legal representative’s office, travel restrictions permitting. The Panel was reinforced in its view that a virtual hearing is just and equitable bearing in mind that parties are in agreement about a number of factors of importance when considering whether a virtually hearing is appropriate, including the nature of the issues to be determined. The Panel also recognised that in light of the current pandemic, it is now commonplace in many forums for hearings to be conducted virtually. Finally, the Panel was not persuaded by the suggestion that it would be appropriate to revisit the application in 6 months' time. The issue for the Panel to determine was whether, at the date of considering the application, a virtual hearing is just and equitable, having regard to all of the relevant factors, in particular the nature of the issues to be determined and the ability of witnesses to effectively participate in the hearing. The Panel did not consider there to be any cogent reason to delay the decision regarding a virtual hearing for a further 6 months. The Panel was satisfied, based on all of the reasons advanced in the application, that it is just and equitable to conduct the Full Hearing in this case virtually by means of Microsoft Teams. Having reached that conclusion, the Panel granted the application lodged by the Presenting Officer.