All teachers, and indeed principals, deputy principals and school boards want to deliver a professional service to all of their students.
However, occasionally it will become necessary for a School Board to investigate allegations of misconduct against a teacher. In such circumstances, as the Board is an employer, there are general rules for the conduct of disciplinary procedures.
Disciplinary procedures set out the precise format that will be followed in any disciplinary investigation, or in any disciplinary hearing. Procedures agreed by boards of management under Towards 2016, apply to all teachers other than those on probation.
The Procedures are as simple and as flexible as possible in order to cater for a wide variety of circumstances. A school will be expected to closely follow the Procedures; and will most likely be penalised for operating outside of the Procedures, in the event that a disciplinary matter ends up in a court or employment body to decide the fairness of a dismissal.
This article gives a summary of the legal principles underlying the Procedures.
Natural Justice; we've all heard the phrase, but what is it?
The Procedures implement "natural justice" which is mainly derived from two principles of Roman law.
"Audi Alteram Partem" – or "Hear All Sides". This is the right to present the best defence possible.
"Nemo Judex in Sua Causa" – or "No One May Judge in his Own Cause", often referred to as the rule against bias.
Allowing the teacher to defend themselves
To properly present a defence, the teacher will need a right of 'representation', details of the allegation against him or her, copies of all documents relied on by the School Board, the ability to present witnesses, the ability to challenge and cross-examine persons giving evidence against him or her and an opportunity to make a full reply to the allegation.
I am not biased, am I?
The rule against bias means that no person who has a direct involvement in the allegations should be a decision-maker in the process. Even the appearance of bias can taint a process. Any decision-maker should be at least at the same level as, and preferably at a level above the teacher and any complainant. This is to prevent a subordinate giving a decision which is favourable to the person making the allegations, out of deference. In the Procedures, the decision maker can be the Principal, or the Principal and Board Nominee or the Board itself (depending on the stage).
It isn't necessary that the decision-maker be entirely independent, such as a person from outside the school, but he or she should not be one of the persons who have made the allegation.
At the next stage, the Teachers Disciplinary Appeal Panel which must be appointed by the Board under the Procedures, must also be independent.
"You're fired" – This is not The Apprentice
If after an appropriate disciplinary hearing, following the rules of natural justice, it is decided to sanction an employee, there are certain principles which must be followed.
Sanctions must not be pre-emptive, must be proportionate and consistent.
You can, for instance, dismiss a teacher for repeated minor offences, but only after appropriate formal warnings have been given, and the teacher has been given an opportunity to improve. Sanctions should usually not be imposed pending the outcome of a disciplinary hearing, and any sanctions imposed on one employee must not be inconsistent with sanctions imposed on another teacher for similar misconduct. Similarly, it is not appropriate to discipline one teacher for a type of offence if other teachers have regularly committed similar offences and have not been disciplined. The Procedures set out the sanctions which may be imposed.
It's not fair! - When a teacher appeals
Under the Statutory Code of Practice on disciplinary and grievance procedures (SI. 146/2000), a teacher is allowed an internal appeal of any disciplinary decision to the Teachers Disciplinary Appeal Panel. The Procedures provide for an oral hearing and give defined guidance on the composition and conduct of the Appeal.
Q.E.D – The Standard of Proof
The School Board, as the employer, does not have to prove a case beyond reasonable doubt. The burden of proof on civil matters is "on the balance of probabilities". Even if a particular set of facts are suspected, but can not be proven by the Board, if the teacher fails to properly engage with the disciplinary investigation, the Board can come to a decision on the basis that the Board no longer has trust and confidence in the teacher.
Keeping things in good order
It is important that good notes are taken of any disciplinary investigations or disciplinary hearings. In the event of a claim to the courts, or to an employment body, the judge will be seeking to understand the fairness of the procedures applied, as much to establish the facts of the alleged misconduct. In order to successfully defend an unfair dismissal claim, the Board has to prove that the procedures followed were fair, the Board had reasonable grounds to sanction the employee and that the sanction applied was not disproportionate to the conduct.
Conclusion
A disciplinary hearing is a "quasi-judicial" matter. The teacher is essentially involved in a type of mini-trial. While the Board does not have to follow the rules of evidence that would apply in a court, it is expected to deal with the teacher fairly. It is very important that the Board does not pre-judge the outcome and that the teacher is given every opportunity to defend the allegations against them before the Board makes a decision. Whilst a teacher who is caught "red-handed" is not necessarily entitled to insist upon the same level of scrutiny as one where the allegations could be capable of an innocent interpretation, it is still appropriate that the evidence is tested. The key rule for School Boards to remember is that fair procedures are for the guilty as well as the innocent.
Disclaimer
This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Eversheds O'Donnell Sweeney for any action taken in reliance on the information contained herein. Any and all information is subject to change. Eversheds O'Donnell Sweeney is not responsible for the contents of any other website or third party material which can be accessed through this website.
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