Two high-profile headteachers: both garlanded with praise, both nationally recognised for their leadership and both accused of misdemeanours that could have ended their careers. Both were found guilty of conduct that could bring teaching into disrepute, but there the similarity ends. While Liam Nolan was banned from teaching for financial mismanagement, John Tomsett will be able to resume his career, even though he admitted having a relationship with a former pupil shortly after she left school.

Nolan will have to wait for two years before he can apply to work in schools again, after being found guilty over a series of allegations of financial misconduct, including receiving a “second salary” of £160,000 across two years, on top of the £120,000 he received as head of the Perry Beeches Academy Trust in Birmingham. Tomsett, head of Huntington School in York, is free to continue teaching, despite having had a sexual relationship with a former pupil during the summer in which she received her A-level results.

The contrasting outcomes have raised questions over whether there is a consistent approach to dealing with allegations of misconduct by teachers. So what does result in a ban from teaching, and why are some banned while others are allowed to continue?

Courting controversy

Inconsistences are not just confined to the way that teacher-conduct panels treat different cases. There can also be apparent contradictions between how the courts and conduct panels treat the same cases.

Last month, Eleanor Wilson was told she would not face a retrial over allegations that, as a teacher in 2015, she had drink-fuelled sex with a pupil in a plane toilet on a flight home from a school trip. A Bristol Crown Court jury had failed to reach majority verdicts on the four charges of sexual activity with a child by a person in a position of trust. Wilson had denied all of them.

So she walked free. But it was too late to save her teaching career. By that time, Wilson had already been indefinitely banned from the profession after the same case had come before a National College for Teaching and Leadership misconduct panel in July 2017. Wilson wasn’t present at the hearing, but it went ahead anyway, and heard from the pupil concerned and the head of her former school. The panel concluded that the witnesses were reliable and that the allegations, which Wilson contested, were “more likely than not to have occurred”. Because of the “severity of the actions found proven”, it said she should not teach again - a decision the secretary of state approved.

So, two very different outcomes resulting from the difference between a criminal court’s “beyond all reasonable doubt” standard of proof and the panel’s “balance of probabilities” civil approach. And the same potential issue remains with the Teaching Regulation Agency (TRA) that heard the Nolan and Tomsett cases, which has the same lower standard of proof. The quango was created earlier this year to hear allegations of misconduct, following the abolition of the National College (see box, page 55). It does not hear the most serious allegations against teachers. These are dealt with by the criminal justice system and then the Disclosure and Barring Service, but even so, it has a high threshold.

The TRA has only one sanction at its disposal - a prohibition, or ban from teaching. So it only considers allegations serious enough to warrant a ban, either indefinite or temporary, if proven. These can range from inappropriate relationships with students to financial mismanagement, failure to deal appropriately with safeguarding or health and safety issues, and cheating in exams or providing false data. They can also include allegations of sexual relationships with a student when they were over 16. This was made an offence of abuse of trust in 2003, applying to social workers, doctors, foster carers and police officers, as well as teachers, but the TRA can also consider relationships dating to before the change in the law.

In his witness statement to the TRA, Tomsett said that at the time he had embarked on the relationship with a former pupil in 1992, pupil/teacher relationships were not only “not uncommon”, they were “a regular feature of sixth-form college life” and there was “no expectation of a ‘professional distance’ ”.

The TRA found the allegation that Tomsett had begun the relations before the pupil left school was not proven. However, in its published judgment, the panel still considered that his behaviour “fell short of the standards expected of the profession at the time, particularly the failure to maintain proper professional boundaries”. Even though this standard might not have been explicit at the time of the affair, “it nevertheless existed”, the panel said, adding that it was very clear “it is not professionally acceptable for a teacher to enter into a romantic or sexual relationship with their former pupil shortly after that pupil has left school or college”. But in deciding not to recommend a ban (the final decision was, as always, made by a representative of the secretary of state), the panel took into account a 150-page bundle of testimonials from former pupils, parents, colleagues and other education professionals, Tomsett’s involvement in local and national initiatives, and his record of achievement, including an Ofsted report last year that judged his school “outstanding” in every category.

‘Loss to the profession’

A teacher’s contribution to the profession is an important factor in determining whether the TRA recommends a ban, according to Simon Thomas, chief solicitor for the NAHT headteachers’ union. The point was reiterated in a case before the High Court last year. Greg Wallace, former executive headteacher of the Best Start Federation of schools in Hackney, East London, was originally banned from teaching for two years over allegations of financial misconduct.

He appealed the decision, and the High Court ruled that the strong public interest in retaining Wallace in teaching outweighed the damage to public confidence in the profession that would result. Publication of the original finding of guilt was itself sufficient punishment, the court said.

“One of the points the judge made was that the regulator should take into account the loss of someone to the profession when deciding whether or not to prohibit them from teaching,” says Thomas. “If someone has made a long and valuable contribution to the profession, and the profession would be deprived of a useful practitioner, that can be an important argument against a prohibition.”

The public interest in allowing Tomsett to continue teaching was a factor in the panel’s recommendation in his case, with the panel considering that “the publication of the adverse findings it has made is sufficient to send an appropriate message to the teacher and the profession, as to the standards of behaviour that are not acceptable”.

But discriminating on the grounds of a teacher’s contribution risks inconsistencies, and comes dangerously close to adding a judgement of teaching ability to what should be a judgement of misconduct, says Amanda Brown, deputy general secretary of the NEU teaching union. “If we’re really looking at misconduct, then it is outside the remit [of the agency] to look at competency,” she adds. “That should be dealt with in the workplace.”

Recruitment and retention issues may also be a factor in whether a panel recommends a ban. When Stephen Ivey came before the TRA last month, accused of falsifying controlled assessments, in deciding not to recommend a ban, the panel noted that he was “a specialist teacher in a shortage subject”, while the secretary of state’s representative said that a ban would “clearly deprive the public of his contribution to the profession”.

And, judging by the 86 cases published by the TRA between its inception in April and 13 November, Ivey’s may not have been an isolated case. Out of the 21 teachers found guilty of conduct that may bring the profession into disrepute, but who escaped without a ban, seven were listed as secondary schoolteachers of specific subjects (see box, below). Six of the seven were teachers in shortage subjects: four in maths and two in computer science. The other was a teacher of Jewish studies and a former principal.

But taking a teacher’s subject or role into account should not be part of the decision-making process, argues Brown. “They are supposed to show that the misconduct is fundamentally incompatible with being a teacher, and it shouldn’t matter whether someone is a maths teacher or a head or a deputy head,” she says. “Their focus should be very much on the alleged misconduct.”

Exceptions may be made where a teacher can show their behaviour was out of character or the result of workplace pressure, she adds.

There was no such lifeline for Nolan, despite his record of having transformed Perry Beeches from a failing school to one of the most improved in the country, earning it the accolade of Tes secondary of the year in 2011, as well as praise from then prime minister David Cameron. In its ruling, the TRA panel recognised the “significant contribution” Nolan had made to the profession and that there was a “public interest consideration” in keeping him in teaching.

However, unlike Tomsett, Nolan was unable to ask for previous good character to be taken into account. This was because of a conviction in 2007 for “outraging public indecency”, even though it was unrelated to the charges of financial mismanagement that led to him being banned.

That “indecency” incident, which took place in a park during school time, saw Nolan hauled up before the TRA’s predecessor body in 2008. He was reprimanded by the disciplinary hearing, but allowed to keep his headship at Perry Beeches because of his record of success in improving the school’s performance. A decade later, that record was no longer enough to prevent a ban.

The TRA panel said that, although Nolan apologised for his failings, he did not show “sufficient insight” into their seriousness or his responsibility as the trust’s accounting officer - in particular, seeking to shift the blame for his remuneration arrangements.

Insight - and remorse - are often key in determining whether a panel recommends a ban, according to Thomas. “If you recognise that you have done something wrong and you can demonstrate that you have learned from your mistake and are unlikely to repeat it, in a huge variety of cases, you have got a good chance of escaping prohibition,” he says.

Insight also carries more weight if it appears early in the process, he adds: “If you come along showing insight for the first time on the day of the hearing, they would not take it into account.”

Dishonesty makes the difference

For Nolan, it may have been lack of insight, as much as the allegations themselves, that resulted in his being banned. The fact that the panel decided his behaviour “lacked integrity” is also likely to have weighed heavily against him. This is a serious matter for professionals, according to Sarah Linden, senior solicitor at the Association of School and College Leaders. And, she adds, dishonesty - which Nolan was not found guilty of - would be even worse.

“Almost all professions would consider dishonesty to be incompatible with the profession, and that includes teaching,” she says. “Being knowingly and deliberately dishonest would almost always make someone get a prohibition. It is a question of public trust and confidence.”

Although Linden emphasises that “each case is considered on its own individual merits”, the presence of dishonesty often explains why some teachers are banned and others aren’t.

Even where the offences are apparently serious enough to warrant a ban, an early admission of guilt, no attempt to cover up, and insight rather than denial, can be enough to sway the panel into recommending no ban. And although it may not be explicitly written into the TRA’s guidance, Linden argues that an individual’s ability as a teacher and potential loss to the profession should be taken into account by disciplinary panels.

“There is a public interest in good teachers being retained within the profession,” she says. “It might seem that there are significant inconsistencies between cases, but it doesn’t suggest there is anything untoward going on.”

But that does seem to risk the system sending out the worrying message that if teachers do something to put their career at risk, they could get away with it by making themselves invaluable first - or else by teaching a shortage subject.

Nick Morrison is a freelance education journalist