Thames Water fined for “entirely foreseeable” pollution
Wallace v Secretary of State for Education  EWHC 109
In May 2016, ‘Superhead’ teacher Greg Wallace was found to be guilty of unacceptable professional conduct (UPC) by a professional conduct panel (PCP) of the National College of Teaching and Leadership (NCTL). The allegations were that he had breached financial governance standards thereby failing to ensure the appropriate use of public funds, failed to declare a conflict of interest and disclosed confidential information to an individual in the course of a competitive bidding process.
Despite finding that the allegations proven amounted to UPC, the PCP decided not to make a recommendation to the Secretary of State for Education (SoS) that a prohibition order preventing him from teaching should be made. This was due to the dedicated and devoted work Mr Wallace had carried out in the teaching profession, positive testimonials and a high level of remorse/insight shown. They stated that;
"In carrying out the balancing exercise, the Panel has considered the public interest considerations both in favour of and against prohibition, as well as the interests of Mr Wallace…….
Even though there were behaviours that would point to a prohibition order being appropriate, the Panel went on to consider whether or not there were sufficient mitigating factors to militate against a prohibition order being an appropriate and proportionate measure to impose, particularly taking into account the nature and severity of the behaviour in this case. Mr Wallace has a previous good history and the Panel accepts that his actions were not consistent with his character as a whole……."
Having considered the PCP’s decision, the SoS disagreed. She considered that the Panel had taken insufficient account of the public interest considerations in this case, and that there was a real risk that public confidence in the profession would be undermined if a prohibition order was not made. The SoS considered that the Panel had afforded too much weight to mitigating factors and decided to prohibit Greg Wallace from teaching, with the possibility of review in 2 years.
Intending to appeal this decision, Mr Wallace first made an application to the High Court under Part 52.19 of the Civil Procedure Rules for a costs cap to ensure that he could freely pursue his appeal. This was granted; see our summary at https://www.kingsleynapley.co.uk/comment/blogs/regulatory-blog/how-to-limit-your-costs-when-appealing-against-a-decision-of-a-regulatory-tribunal
The Substantive Appeal
A number of grounds of appeal were brought on behalf of Mr Wallace;
The Court did not suggest that in every case where a Panel upholds an allegation, the Respondent is obliged to consider the weight to be given to the sanction of publishing adverse findings. For example, there may be some cases where the conduct is so serious and there is no significant counterbalancing factor, that it is obvious that only a prohibition order would suffice[79-80].
It was therefore held that;
In my judgement, it follows from all these circumstances that the alternative sanction that the adverse findings of misconduct should be published was an ‘obviously material’ consideration which the Respondent was explicitly required to take into account and weigh’. It is also plain from the decision letter that the Secretary of State did not take into account and weigh this alternative before reaching the decision to impose the far more serious sanction of a prohibition order. 
Ground 3 was therefore upheld.
In the circumstances of the case, it was decided that there was ‘a combination of exceptional features’ which led the Court to deal with the matter itself rather than remitting it to the Respondent for further redetermination;
In light of the above, the Court decided, applying the proportionality test, that the formal publication of the findings of misconduct, with the detrimental effects they are likely to have on the Appellant’s career, represents the least intrusive measure to be adopted. The appeal was therefore allowed.
Although this case is relatively specific to the regulatory regime relating to teachers in England, it does act as a reminder that the principle of proportionality must always be at the centre of all decisions as to sanction in regulatory proceedings. It must also feature heavily in the written determination to ensure that its centrality to the decision making process is recorded for all to see.
 Education Act 2011 and Teacher’s Disciplinary (England) Regulations 2012
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