Professional misconduct and public law | Feature

In the 1936 movie Swing Time, Ginger Rogers gave some timeless advice to Fred Astaire: ‘Will you remember the famous men/Who had to fall to rise again?/So take a deep breath/Pick yourself up/Dust yourself off/Start all over again.’ Many successful people did this. The Beatles’ 1962 rejection by Decca, for example, was a mere fleeting setback. And H.G. Wells struggled at first to get published, observing: ‘Some day I shall succeed. I really believe; but it is a weary game’. To quote another song, the best approach to job rejection is ‘to accentuate the positive’, including reviewing and reflecting upon detailed feedback and creating a personal development plan.

The appellant in Thomas v Education Workforce Council [2021] EWHC 2774 (Admin) appeared to take a different approach. For (as Johnson J noted in the Cardiff Administrative Court on 18 October 2021), when the appellant was informed by email that his application for a teaching post was unsuccessful, the following response was sent from his email account: ‘Go fuck your self’ followed by the ‘winking face’ emoji. The Education Workforce Council (EWC – the statutory successor to the General Teaching Council for Wales) decided that this amounted to unacceptable professional conduct, meriting a reprimand.

The appellant’s grounds of appeal included that the EWC’s Fitness to Practise Committee (FPC) was wrong to proceed in his absence; to conclude that the appellant was the author of the email; and to determine that sending the email amounted to unacceptable professional conduct warranting a reprimand.

The statutory framework includes The Education (Wales) Act 2014 and the Education Workforce Council (Main Functions) (Wales) Regulations 2015 S.I. 2015 No. 140. However, given the public law context, the case will also be of wider interest. Following the decision of the Court of Appeal in Sastry v General Medical Council [2021] EWCA Civ 623, at [19]-[39], the court noted (among other things) that: ‘A review of a decision may engage with the merits of the decision. It can involve a more intrusive examination of the merits of the decision than a claim for judicial review under CPR 54. A review under CPR 52 is not limited to a test of the rationality of the decision in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223’.

Furthermore, the decision of the High Court is final and may not be appealed (section 32(4) of the 2014 act) and the appeal is limited to a review of the FPC decision unless a rehearing is required in the interests of justice. Since it was not suggested that a rehearing was appropriate, the appeal proceeded as a review.

As to the FPC’s proceeding in the appellant’s absence, Johnson J noted that: ‘The FPC was correctly informed that the appellant had been informed of the hearing in good time, that the appellant had said that he would not be attending because of stress and anxiety, that there was no medical evidence to suggest he was unfit to attend, and there was no indication as to when the appellant might feel able to attend. The FPC was then given (accurate) legal advice as to the power to proceed in the appellant’s absence. After retiring to consider the matter, the FPC ruled that it would proceed in the appellant’s absence.’ The court in rejecting this ground of appeal concluded that the FPC ‘had proceeded with conspicuous fairness and care’. Consequently the ‘appellant did not… have a good reason for not attending the hearing’ and there ‘was no basis to believe that he would attend a future hearing.’

Furthermore, the FPC’s finding that the email in question was sent by the appellant was inevitable on the evidence. The appellant provided no evidence beyond assertion that could support any alternative finding.

Although the appellant did have grounds to complain about the 10 months’ delay before he was informed of the detail of the underlying allegation since ‘delay risks causing prejudice and unfairness’, the appellant was not suggesting that this rendered the proceedings an abuse of process. Consequently, this was not a basis for allowing an appeal. Regarding the FPC’s finding of unacceptable professional conduct warranting a reprimand, Warby J in Khan v Bar Standards Board [2018] EWHC 2184 (Admin) had said that: ‘The authorities make plain that a person is not to be regarded as guilty of professional misconduct if they engage in behaviour that is trivial, or inconsequential, or a mere temporary lapse, or something that is otherwise excusable, or forgivable’. Everything depends on the particular facts.

On this Johnson J said that: ‘The consistent theme in the authorities is that a degree of “opprobrium” or “moral culpability” is required. Where that requirement is satisfied, conduct cannot be regarded as a “mere temporary lapse” in the Khan sense.’

However, the FPC did consider making no disciplinary order, recognising that the finding of unacceptable professional conduct is itself a serious matter. It also took account of (among other things) the appellant’s previous good history and that, while the appellant’s conduct ‘crossed the threshold’, it was not at the most serious end of the spectrum.

Consequently, the FPC concluded that, although no order would not be appropriate or serve the public interest, ‘a reprimand was a sufficient sanction to uphold public trust and confidence in the profession and to protect the public interest’.

The court found no flaw in this reasoning and the sanction was not disproportionate (particularly in the absence of any apology, remorse or behavioural insight) or the findings otherwise wrong.

In the circumstances, the FPC had conducted a fair hearing with no demonstrable irregularity or injustice in outcome. The appeal was therefore dismissed.

Nicholas Dobson writes on local authority, public law and governance


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