In a Fitness to Teach Panel decision from December 2020, in the midst of the Covid-19 pandemic, the Panel were invited to address a proposal made by the General Teaching Council for Scotland (GTCS) Regulation and Legal Services Team for the full competence hearing to be held virtually.
By default, the GTCS conducts all its fitness to teach hearings in person at its site in Edinburgh. However, a Fitness to Teach Panel may order that all or any part of a hearing may be conducted by the use of electronic communications.
The use of Virtual Hearings had obviously been widely used at that time out of the necessity occasioned by the Covid-19 pandemic, which meant that hearings in person could not take place.
The GTCS rules dictate that an application for use of electronic communications in relation to a participant taking part in a hearing from a remote location or for a Virtual Hearing can be made by the party who wants to use electronic communication. The relevant procedure and criteria for determining such applications is set out in the Use of Electronic Communications in Hearings Practice Statement.
In determining the application, the Panel gave consideration to a number of factors, including:
- Was the Teacher represented?
- Did the Teacher and/or witnesses have any particular needs or vulnerabilities?
- How would the Teacher and Representative, if any, communicate during the hearing?
- The nature of the proceedings and issues to be determined at the hearing.
- The estimated length of the hearing.
- The extent and complexity of the issues in dispute.
- Would the hearing take place in public or (partly) in private?
- The volume of documentation to be referred to during the hearing and how documentation would be provided to witnesses for reference, if required.
- What confidence was there that each witness would be able to follow questions easily and any documents being referred to?
- Would all participants at the hearing have access to a suitable electronic device, an internet connection and be able to participate alone and undisturbed?
The Teacher opposed the proposal for a Virtual Hearing.
The Teacher’s Representative’s submission was that holding the hearing remotely would cause unfairness to the Teacher. The Teacher’s Representative also submitted that GTCS had no jurisdiction to proceed with a Virtual Hearing in the absence of agreement of all parties.
In refusing to grant the application for a Virtual Hearing the Fitness to Teach Panel first of all rejected the Teacher's submission that it had no jurisdiction to proceed with a Virtual Hearing in the absence of the agreement of all parties. This was a discretionary power which the Fitness to Teach Panel were entitled to exercise even in the face of opposition.
However, the Panel noted that no submissions had been made in relation to there being a particular public interest in this matter being determined urgently. This meant that the matter could wait (and as it turned out did wait until October 2021) to proceed with little prejudice to either party.
The Panel accepted unfairness to the Teacher could potentially arise as a consequence of difficulties the Teacher might have in giving evidence remotely about very sensitive issues including the Teacher’s health and the manner in which she was treated by her employer. The hearing was also going to be relatively lengthy and complex with witnesses speaking to issues spanning a number of years.
This case is an interesting summary of the matters which a Fitness to Teach Panel considered to be relevant to the question of any unfairness which might be said to arise from holding a Virtual Hearing instead of an In-Person Hearing. It suggests that whilst Virtual Hearings have been used as a matter of necessity during the pandemic, their continued use into the future may be restricted in circumstances where one party opposes such a course of action. In cases like this, where parties are in dispute as to the fairness of Virtual Hearings, the Panel would appear to err on the side of caution and place some favour upon the In-Person process as being the more appropriate for complex and lengthy hearings. This approach does though raise questions as to whether or not Virtual Hearing are indeed "second class justice" and to be phased out when the course of the pandemic allows.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.