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Inquisitorial fitness to teach hearings: lessons learned?

  • Legal Development 16 March 2021 16 March 2021
  • UK & Europe

  • Education

The General Teaching Council for Scotland Fitness to Teach Panel has been criticised for failing to take into account a teacher's Asperger's syndrome when considering whether he was unfit to teach.

Inquisitorial fitness to teach hearings: lessons learned?

In MS v General Teaching Council of Scotland [2021] CSIH 17 the court allowed an appeal quashing the decision that the teacher was unfit to teach.

The teacher undertook an extended probationary period, following a period of ill health, in two different schools. At the hearing the panel considered a recommendation from the local authority employing him that his provisional registration should be cancelled because his fitness to teach was impaired by lack of professional competence. The teacher believed he continued to meet the standards expected of a probationer. He submitted that his failure to meet the standards expected of a fully registered teacher was due to the failure of the schools where he worked to make sufficient reasonable adjustments for his Asperger’s syndrome. He sought a further probationary year to seek to meet the relevant standards.

The panel found that the appellant had failed to meet the standards of either a fully registered teacher or a probationary teacher. It removed his name from the register of teachers.

The appellant challenged the panel’s determination on the basis that it failed to take account of the effect of his Asperger’s and the absence of reasonable adjustments to accommodate him.

The court held that the panel failed to address whether his failure to meet the teaching standards was due to the failure to make sufficient reasonable adjustments. While the teacher's evidence on whether they had made sufficient reasonable adjustments was opinion evidence, since the proceedings were inquisitorial rather than adversarial the panel could have decided that these aspects of his evidence merited further investigation. It could have adjourned the hearing to give the parties the opportunity to submit skilled evidence. The court held that notwithstanding the panel's difficulty in having no medical evidence, they erroneously proceeded as if the issues relating to the teacher's Asperger’s, reasonable adjustments, and their possible effect on his progress could be ignored.

The court found that the panel should have considered whether evidence about his Asperger’s related difficulties and his failures to meet the standards being due to the lack of reasonable adjustments was correct, and therefore whether it had a material bearing upon his fitness to teach. They should then have considered whether an extension of his probationary period would be likely to be fruitful.

This case has the peculiarity of GTCS fitness to teach professional competence hearings being inquisitorial and therefore the panel having the onus to seek out the information needed to make its decision. However the case is still a lesson for not only regulators but also for the practitioners before them. If a registrant submits that their ability to practise could be affected by a medical condition then it is of vital importance that expert evidence is led and considered. To proceed without doing so could mean the panel fails to properly address the vital issues and leave them open to criticism.


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