David Hart, general secretary NAHT comments as follows:
The DTI needs to explain the exact responsibilities held by employment agencies when it comes to vetting the suitability of the staff they provide to schools.
The DFES must clarify the obligations of both employment agencies and schools when it comes to firing supply teachers on the grounds of misconduct and reporting to the secretary of state under List 99 procedures.
Furthermore, nothing has been said about the duty of employment agencies to suspend supply staff in the wake of child protection allegations.
NAHT members are already complaining in increasing numbers about the failure of employment agencies to provide supply teachers who are competent to teach the age ranges or subject specialisms required by their schools. The last thing they need is uncertainty over the procedures by which allegations of misconduct against supply teachers must be handled.
27 February 2002
The Rt Hon Estelle Morris MP
Secretary of State
Department for Education & Skills
Great Smith Street
LONDON SW1P 3BT
The Implications of the Amy Gehring Case
The NAHT has examined the relevant legislation covering misconduct by supply teachers and has come to the conclusion that there are sufficient uncertainties, and potential loopholes, to justify the issuing of urgent further guidance for the benefit of schools, employment agencies and local education authorities.
I have sent a copy of this letter to Patricia Hewitt, Secretary of State for the Department of Trade & Industry, because she has oversight of the employment agencies legislation.
The key points appear to us to be as follows:-
1. Timeplan's licence can be revoked if they are unsuitable to hold a licence on account of misconduct, or any other sufficient reason, or if their business is being improperly conducted. This, of course, is a matter for the DTI. But, irrespective of any DTI ruling on this point, there is clearly a strong argument for greater clarification of the circumstances justifying revocation in the light of the events surrounding Amy Gehring. (See paragraphs 2. and 3. below.)
2. The Conduct of Employment Agencies and Employment Businesses Regulations 1976 require the employment business to ensure that the school knows what procedure should be followed if a teacher supplied to the school proves unsatisfactory. Did Timeplan undertake this?
3. The same Regulations require an employment business to take all such steps as are reasonably practicable to obtain from the school as much information about the work, for which the teacher is to be supplied, as is necessary for the purpose of selecting a suitable teacher to do that work. It cannot be remotely argued that, by the time Amy Gehring had been sent to the school, where the events leading to the prosecution took place, she was suitable to teach at that establishment, having regard to her behaviour at a previous school. Does Timeplan's action, in sending her to that school, constitute misconduct or improper conduct?
4. DfES Circular 7/96, on the use of supply teachers, says that List 99 procedures apply to supply teachers recruited through employment businesses. It also states that, where a teacher is recruited through an agency, the agency should have undertaken all the necessary checks and that the school should ask for a written assurance that the agency has carried out the necessary checks.
However, a check would have revealed nothing regarding Amy Gehring because she was not on List 99. There are loopholes and grey areas in the List 99 procedures.
5.DfES Circular 11/95, which covers List 99, makes it clear that, if Amy Gehring's conduct had been reported to the Secretary of State, she might have appeared on List 99. But this would not have been a foregone conclusion:-
5.1First she must be given a Hearing, and rightly so. Second, there must be evidence to substantiate the allegation against her, and, again, rightly so. Third, the Secretary of State has to apply a higher standard of proof than judging guilt on the basis of a balance of probabilities. All these protections for the individual are necessary, but it demonstrates the need to correct some of the reports in the media which suggested that a mere letter to you would justify her being placed on List 99.
5.2It is clear from the Circular that misconduct can only be reported to you, save in the case of a criminal conviction, where the person in question has been dismissed by a local education authority or governing body on the grounds of misconduct, or resigned in circumstances where they would have been dismissed, or considered for dismissal, on those grounds.
5.3The real loophole in the case of supply teachers is whether any action by Timeplan to terminate the services of Amy Gehring, or any request from the school to remove her, would have required a report to the Secretary of State, thus triggering List 99 procedures.
We say this because the Education (Restriction of Employment) Regulations 2000 state that dismissal includes the termination by the governing body of a person's engagement to provide services as a teacher other than under a contract of employment.
Does this mean a request by the school to Timeplan to remove a supply teacher? Does it mean that the school or Timeplan should report termination to the Secretary of State? How are self-employed supply teachers dealt with?
We all know that Timeplan should have 'fired' Amy Gehring after the events at the first school but the Regulations do not appear to place an obligation on an employment agency, such as Timeplan, to report the matter to you.
6.Finally, there is the whole question of child protection procedures. If a supply teacher is the subject of child protection allegations, what responsibility is placed upon the employment agency to suspend the teacher pending the outcome of the child protection enquiries?
In other words, are supply teachers supposed to be treated in exactly the same way as staff employed by a governing body or local education authority?
I would very much welcome a meeting with your officials, and with officials from the DTI, to see if we can agree urgent further guidance by way of clarification.
Copy to: The Rt Hon Patricia Hewitt, Secretary of State for Trade & Industry