School rules are imposed on FE’s errant teachers

FE teachers and trainers are set to be brought into England’s national teacher misconduct regime under reforms expected to pull around 2,000 providers into scope.

Under the Children’s Wellbeing and Schools Act, which received royal assent in April, powers to permanently ban teachers guilty of serious misdemeanours were extended to staff at FE colleges, independent training providers and special post-16 institutions.

It also means FE settings will have a new “duty to consider” making a referral to the Teacher Regulation Agency (TRA) when a teacher is dismissed for serious misconduct.

The sector is now awaiting guidance from the Department of Education on how the rules will be applied. No date for implementation has been given and officials refused to say if the TRA – which is beset by backlogs – will get extra resources to handle its increased workload.

The DfE’s own impact assessment estimated the changes would add up to 500 additional referrals a year, based on the TRA investigating 0.3 per cent of the 470,000 school teachers already in scope during 2023.

The assessment also made a “conservative assumption” the new law would affect 2,000 providers, half of which are private companies.

Last year, the TRA spent £17 million on the regime and held a record 301 hearings, a 20 per cent increase from the year before.

Cases took an average of 113 weeks to conclude in 2023, more than double the agency’s 52-week target.

How the ban regime works

The TRA is an executive agency of the DfE. It investigates the most serious teacher misconduct cases and decides whether they should be referred to a professional conduct panel. Its remit currently covers schools and sixth form colleges.

Existing guidance says serious misconduct can include sexual misconduct, violent behaviour, serious safeguarding failures, alcohol or drug misuse, fraud or serious dishonesty, discrimination or harassment, and promoting extreme political or religious views.

The system is not designed to handle ordinary capability issues, underperformance or less serious misconduct, which remain the responsibility of employers.

The TRA’s referrals can come from employers, police, the public or the Disclosure and Barring Service (DBS). Under the new act, DfE officials will also be able to refer cases directly for the first time.

Caseworkers assess whether allegations should progress to a three-person professional conduct panel, which typically include someone with recent teaching experience and a lay member.

Panels examine whether a teacher’s actions amount to unacceptable professional conduct, conduct that may bring the profession into disrepute, or a conviction for a relevant offence.

Panel members then recommend whether a prohibition order is appropriate, and a senior TRA official decides whether to make the order on behalf of the education secretary.

If a prohibition order is recommended and signed off by the secretary of state, the individual is barred from teaching. Depending on the seriousness of the offence, some teachers are allowed to apply to have their prohibition order reviewed after a set period.

Closing loopholes

The act will require FE providers to consider making a TRA referral where someone has been dismissed for serious misconduct. They must also not employ prohibited teachers.

Colleges, special post-16 institutions and training providers are already prevented from employing prohibited teachers through funding agreements. But ministers concluded the measure was insufficient since the TRA had no remit to investigate serious misconduct committed by staff in those settings.

The TRA currently covers teaching work in schools, sixth-form colleges, 16-to-19 academies, children’s homes and relevant youth accommodation. The Children’s Wellbeing and Schools Act adds FE colleges, special post-16 institutions, ITPs, online education providers and independent educational institutions that are not schools.

It makes clear the TRA can consider serious misconduct regardless of whether the person was employed or engaged to carry out teaching work at the time.

That means it covers conduct by someone before they became a teacher, when they were between teaching jobs, or working outside an education setting.

The DfE said the reforms would uphold standards of conduct, maintain public confidence in the teaching profession, and “extend parity of treatment” so children receive the same protection regardless of where they learn.

Exempting the smallest providers from the new requirements was considered but rejected because it would “permit small settings to employ teachers we consider to be suitable or unsafe”.

Sector leaders broadly welcomed the closure of safeguarding gaps, while warning that providers needed clear guidance before the new duties begin.

‘Extension of HR process’

Janet Curtis-Broni, chief people officer at Elevare Civic Education Group, which runs London South East Colleges, said: “It might be more work for the TRA but ultimately, it’s an extension of an HR process.

“It’s another measure to make sure we are closing all those gaps so we don’t have people who aren’t suitable to work with children.”

Cath Sezen, the Association of Colleges’ director of education policy, said it was right that colleges come under the same system as schools on these “very rare” occasions.

David Welch, principal of Green Corridor specialist college and who has previously overseen TRA referrals, said the change clarified expectations of employers and added: “If we’re referring to the DBS, we refer to the TRA. I’m confident on that threshold.”

Welch explained prohibition orders add a permanence that DBS checks and employer references cannot always provide.

“With a reference, you’re only chasing the most recent employer, and that institutional memory might fade,” he said. “What would be great is to make sure the TRA has that permanence around it.”

But Simon Ashworth, deputy chief executive and director of policy at the Association of Employment and Learning Providers, warned that providers need clear communication.

“Awareness across the sector of the impending changes, and what that means for providers’ responsibilities for reporting and compliance, remains limited,” he said.

Existing FE situation

The expansion has raised questions about how a regime designed around schools will apply to FE’s broader teaching workforce.

The TRA uses “teachers’ standards” when considering serious misconduct. The standards were written for schools, although references to pupils include post-16 learners, while references to schools should be read as the educational setting where the standards are applied.

FE teachers also have voluntary professional standards overseen by the Education and Training Foundation, covering occupational expertise and pedagogical practice.

Vikki Smith, ETF’s chief professionalism officer, said practitioners who hold qualified teacher learning and skills (QTLS) status are already subject to professional conduct processes.

“Where serious breaches are upheld, professional membership and QTLS status may be reviewed and withdrawn – and this feeds through to the TRA,” she said.

“Professionalism in FE and skills should continue to be defined by the sector’s professional standards. The role of regulation is to safeguard public confidence when those standards are seriously breached, not to define professional excellence.”

David Murray, a teacher of English at Stoke-on-Trent Sixth Form College, which is already in scope of the TRA regime, said lawmakers have not always appreciated the differences between FE and schools.

“It would seem wise to shape guidance and standards to the specific needs of the sector, and also to keep the safety and wellbeing of educators in mind in the process,” he said.

“That may take more time and more work, but it would surely be worth it to get it right.

“Violence from adult students directed towards staff who then defend themselves is very different in nature from any aggression at all directed against a minor, but such a situation could still fall into the same disciplinary area of teacher standards.”

Texting driver and OnlyFans

TRA decisions when no prohibition order is made are published and sometimes make headlines in local and national newspapers.

Published school-sector decisions show the prohibition orders can be made for behaviour beyond the classroom, and cover social media posts, dishonesty, sexual misconduct, discriminatory messages and behaviour outside work.

One teacher was found texting whilst driving a minibus of school children, but received no ban since “no doubt” had been cast on his teaching abilities.

Another posted “highly offensive” comments on social media about the Israel/Palestine conflict but did not receive a ban due to his remorse and the low risk of repetition.

A third was not banned over faking sickness to attend a stag do and removing pages from his passport as his dishonesty was not at the “most serious end of the spectrum”.

In contrast, a male teacher received a ban for being in a WhatsApp group containing racist, homophobic and misogynistic messages.

A two-year minimum ban was also handed to a woman who admitted having a “granny schoolteacher” themed OnlyFans page, and a male teacher who failed to use a transgender pupil’s preferred pronouns on live television.

University and College Union head of FE Paul Bridge said: “A lifetime prohibition order is an extremely blunt instrument and it is concerning that the secretary of state has ultimate responsibility for both the investigation of cases and the sanction imposed.”