Employment law: Shadow of suspicion

3rd July 1998 at 01:00
With a suspected child sexual abuser on the staff, a teacher who has very publicly abandoned his wife to set up house with a colleague, and allegations of bullying and incompetence flying around the staff room, GramHigh Combined School has problems.

This case study at a recent seminar on staff discipline is fictional. But the seemingly intractable management problems facing Mr Chalk, its new head, are real: they are based on cases handled by Taylor Vinters, the solicitors that jointly organised the seminar with the consultancy Cambridge Education Associates.

The case study throws up a variety of employment law issues, ranging from sex discrimination to the rights of part-time teachers. But the question that provokes the liveliest discussion concerns "Squeezy McQueen", the religious studies teacher who has become too friendly with some of GramHigh's younger pupils. Several headteachers, deputies and teachers agree that the problem sounds "horribly familiar".

Mr McQueen is an enthusiastic and effective teacher, who clearly has his favourites. He is in the habit of taking some of these on so-called educational trips not organised by the school - though parents probably think they are.

Lately, pupils have nicknamed him "Squeezy McQueen". A music teacher has mentioned that in a lesson after one of Mr McQueen's weekend trips a pupil had seemed very distressed. When asked about the weekend, the girl had said she would never go on an outing with Mr McQueen again.

With nothing more definite to go on, the seminar group is divided over how they would deal with a situation of this kind, though they all agree GramHigh needs to tighten up its procedures to ensure every outing is properly authorised. Some say they would bring in social services straight away. Others think that unless a child or a parent makes a complaint, it would be hard to take any action against Mr McQueen, who is, after all, a useful member of staff.

Michael Womack, a partner at Taylor Vinters, says evidence is always difficult to find in cases of suspected sexual misconduct. But he warns against sweeping problems under the carpet, even when - as in the case study - there is nothing more than a whiff of suspicion that things are not quite right.

"If you have a suspicion, don't wait for a complaint, investigate it," he says. "When you have a problem of this kind and ask around, you invariably find more evidence. "

In this case, he said, social services should be consulted early on, while the music teacher who has noticed the child's distress should be asked to make a written statement as soon as possible. Someone in a position of authority should also talk to Mr McQueen and find out why he thinks the child seemed so upset. If he fails to give a satisfactory explanation, the school should suspend him and at the same time tell parents what is going on. This might be embarrassing for the school but so is uninformed gossip.

Mandy Lyne, head of the employment law team at Taylor Vinters, says suspension is justified where an employer is satisfied that a case is going to be one of gross misconduct or where the teacher concerned is likely to obstruct an investigation. For the purposes of dismissal, a genuine belief that an employee has been guilty of gross misconduct is enough - so long as that belief is based on reasonable grounds.

"You do not need to be sure beyond reasonable doubt," says Ms Lyne. "It may not be possible to prove an offence was committed, but that may not be necessary."

If the school's own investigation does unearth evidence of criminal behaviour, the case should be handed over to the police sooner rather than later, she adds.

Where a teacher is dismissed for an actual or suspected offence against children, or has been persuaded to resign before disciplinary action, the school is obliged to inform the Department for Education and Employment. The department may then put the teacher on List 99, which contains the names of people barred or restricted from teaching anyone under the age of 19. Copies of the list, updated at least twice a year, are held by local authorities, independent schools' associations, teacher unions and supply teacher agencies.

Anyone convicted of a sexual offence against a child under the age of 16 is automatically barred from teaching. But if there is no criminal conviction, the DFEE needs some evidence to support allegations of misconduct before it can put a teacher's name on List 99. A problem may be that while the department is looking into allegations a suspect can find a new job before they appear on the list.

When asked to give references for teachers they have suspended or sacked for gross misconduct, some headteachers refuse. Others give only the barest factual details. Their fear of being sued for libel may, however, be misplaced.

Job references that you write have "qualified privilege", says Michael Womack. "What you say to the enquirer does not amount to defamation so long as you are not motivated by malice."

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