Teachers as anomalous victims

Neville Sarony October 05, 2020 09:05

The rush of blood to the crutch that triggered an application for Judicial Review of the Education Bureau’s refusal to identify teachers allegedly found guilty of professional misconduct has, by a side wind, thrown up a gravely unjust and anomalous system.

Under the present system, allegations of misconduct by a teacher may result in censure and loss of their livelihood.

Where the allegation is properly founded, it is in the community’s interests that misconduct that poses a real threat to students, whether physical or moral, should lead to dismissal of the teacher.

Equally clearly, whether or not there is substance in the allegation ought to be determined in a thoroughly fair manner.

Lamentably, the Education Bureau’s current disciplinary process is arbitrary and breaks every rule of natural justice.

A complaint made to the Education Bureau against a teacher is considered – I do not say investigated for reasons which will become apparent – by the Bureau which will then invite the teacher to provide written information or an explanation for the Bureau to consider.

But the details of the complaint are not given to the teacher and, alarmingly, the complainant remains anonymous.

The Bureau’s original guidelines counselled against entertaining anonymous complaints but that safeguard has now been discarded.

The outcome of the complaint may be censure or being struck off the register, the latter denying the teacher their professional livelihood.

Even if the consequences were not so draconian, how is it in this day and age, in the context of a liberal common law jurisdiction, that a professional is denied the most basic right to confront his accuser and be heard in his or her own defence?

It takes years to qualify as a teacher, many of whom regard it not only a profession but a vocation.

Future generations depend upon a vibrant teaching profession that will instil into the student body a set of ethical values, concepts of right and wrong and, critically, the notion of fair play.

How can it be that these same teachers are denied the very essence of fair play in relation to their professional standing?

An employer who denies an employee against whom an allegation of wrong doing is made, an opportunity to be heard and to respond to their accuser, will quickly find themselves on the losing side in an industrial tribunal.

Allegations of professional misconduct against a doctor are first considered to determine whether there is sufficient substance to justify putting the matter before the preliminary investigation committee who will then decide whether to refer the matter to the full disciplinary council.

In the event that the complaint does come before the disciplinary council, a mix of doctors and some professionally qualified lay members, will hear the evidence, the doctor is legally represented and will be afforded every possible opportunity to meet the allegation in a hearing that is normally open to the public.

Barristers and Solicitors have their own respective disciplinary bodies, comprising other members of their respective professions as well as lay members.

Allegations of misconduct have to be from an identified source and fully particularised, supported by evidence. The lawyer complained against faces his or her accusers in a quasi-judicial hearing.

The consequences of an adverse finding by a properly constituted disciplinary body in the medical and legal professions, just as for teachers, may be deprivation of the right to practise and consequential loss of livelihood.

Set against the years of academic study and the rigours of the early years of practice in order to qualify, loss of this right is devastating. These protections of the professional are a fundamental right.

There can be no possible justification whatsoever for treating the teaching profession any differently from those of law and medicine.

In the currently febrile, perhaps one might even say feral, political atmosphere, in which some people are over ready to pounce on a loose word or phrase and interpret it according to their own lights, the level of risk to the teaching profession is approaching its zenith.

None of this even begins to consider what may be regarded, fairly, as constituting professional misconduct in the teaching profession. In this instance it was something on the teacher’s own facebook page.

There are countless hypersensitive folk on both sides of the political equation who have their own agenda to call out teachers, much as they are doing with members of the judiciary.

Praying in aid data privacy to conceal the identity of a complainant against a teacher is a denial of a basic right to be able to face your detractor and makes a complete nonsense of privacy laws.

In a civilised society, it is shameful for a complainant to be able to hide behind anonymity, their words given credence without the teacher complained about having the right to know by whom they are attacked and to be heard in their defence.

Now let us consider the application to compel the Education Bureau to disclose the name of a teacher who has, allegedly, been guilty of misconduct.

Given the inherent injustice in the Education Bureau’s disciplinary system, would it not merely compound that gross unfairness to trumpet the name of a victim of such a flawed process?

It is ironic that having tried and convicted the teacher without a minimally fair hearing, the Education Bureau has, at least, found sufficient clothing to vest itself in decency lest this political gadfly pile Pelion upon Ossa, as Vergil would undoubtedly construe it.

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Neville Sarony

King's Counsel