High Court: Dismissed teacher fails to prevent Teaching Council of Ireland from reporting concerns to National Vetting Bureau

About this case:

• Citation:
  [2019] IEHC 102
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

In applying for a permanent injunction to restrain the Teaching Council from making the notification, the man argued, inter alia, that the proposed notice was motivated by malice and amounted to misfeasance in public office; however, Mr Justice Senan Allen said there was not the “merest scintilla of justification” for that allegation.

Background

In November 2016, gardaí picked up a young man (Student A) in a distressed state walking on the M50 motorway in Dublin.

Student A said that he attended a nearby boarding school, and kept repeating that he did not want to get anyone in trouble, but explained that he needed to get to the airport to get home to Germany.

The gardaí brought Student A back to his school to collect his belongings and inform the headmaster that he was leaving. When on the school grounds, the plaintiff, MP, approached Student A saying: “You don’t have to do this. Come here now and talk to me.” The gardaí noticed that Student A became more distressed and instructed MP to stand aside and move away.

Student A informed gardaí that MP was his housemaster, that they had spent the evening drinking together, and that MP had tried to remove his tracksuit bottoms and became angry when Student A stopped him. It was at this stage that Student A ran to the M50 to try to get to the airport. Student A gave the same account to the headmaster shortly after, and again when interviewed by a detective at the Garda Station. Student A said that he did not wish to make a complaint, and the detective’s assessment was that there did not appear to have been any offence disclosed.

The following morning, MP was suspended on full pay pending the outcome of an investigation and required to leave the school premises immediately.

The internal investigation within the school led to a disciplinary hearing. The focus of the disciplinary process within the school had been on Student A, but in the course of that investigation, a statement had been taken from Student B which supported Student A’s claims. It was concluded that the allegations which had been made out amounted to gross misconduct and recommended that MP be dismissed with pay in lieu of notice.

MP was informed of the decision in December 2016, and exercised his right of appeal under the school’s disciplinary procedures – however, he later decided not to pursue it. 

Complaint to the Teaching Council of Ireland

In March 2017, the headmaster filed a complaint with the Teaching Council under Part 5 of the Teaching Council Act 2001, suggesting that the findings of gross misconduct made by the school amounted to professional misconduct under s. 42(1) of the 2001 Act. In accordance with Part 5 of the 2001 Act, the headmaster’s complaint was dealt with by the Investigating Committee. 

The Teaching Council has a statutory obligation to notify the National Vetting Bureau if it has a bona fide concern that anyone subject to an investigation, inquiry or regulatory process, may harm any child or vulnerable person. Further, under s. 47 of the 2001 Act, the Teaching Council has the power, if satisfied that it is the public interest to do so, to apply to the High Court for an order for the suspension of the registration of a registered teacher.

Following the inquiry into MP, the Teaching Council notified MP of its intention to make a notification to the Bureau.

The High Court

MP argued that the requirements of s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 had not been met; that the Teaching Council has no bona fide concern; and that the decision to make the proposed notification was motivated by malice towards him and amounted to misfeasance in public office.

The primary challenge to the proposed notification was that it was not bona fide and was in breach of his legal and constitutional rights, and his rights under the European Convention on Human Rights and the Charter of Fundamental Human Rights of the European Union.

MP complained that the Teaching Council failed to act as soon as may be (i.e. that there was delay), and that it was acting mala fide.

MP also complained that the Teaching Council sought to rely on:

• Untested and unchallenged allegations made by Student A who was 19 at the relevant time, that Student A refused to stand over, and refused to give a statement or to give evidence at the disciplinary inquiry;
• Hearsay evidence of Student B and a draft document that Student B refused to confirm or sign and could not form part of the disciplinary inquiry.

Mr Justice Allen said there was not the “merest scintilla of justification for the allegation of misfeasance in public office”, and that there was “abundant justification for the concern” which the teaching council decided it should notify to the National Vetting Bureau. Mr Justice Allen was also satisfied that there was no delay on the part of the Teaching Council and that even if the concern had not been notified “as soon as may be”, this would not have absolved the Teaching Council from making the notification – nor would it have prevented it from doing so later.

Mr Justice Allen accepted that the scheme established by the 2012 Act potentially impacted legal and constitutional rights – but this arose “from the prospect of disclosure of information and not from the gathering of the information”. Mr Justice Allen explained that the Oireachtas “put in place elaborate rules and procedures to ensure that information gathered by the National Vetting Bureau will not be disclosed except on a reasonable and reasoned belief that it is of such a nature as to give rise to a bona fide concern that the subject may harm a child or vulnerable person, and that the disclosure is necessary and proportionate for the protection of a child or vulnerable person”.

Explaining that MP would have all the safeguards prescribed by the 2012 Act when the Teaching Council makes the disclosure, Mr Justice Allen noted that there was no challenge to the efficacy or sufficiency of the statutory safeguards under the 2012 Act; or the validity of the Act having regard to the provisions of the Constitution; or the compatibility of the Act with the ECHR.

Dismissing the action, Mr Justice Allen said that in the event of an application in the future for a vetting disclosure, such time as it may take to comply with the statutory procedures will not be an infringement of, or impingement upon, MP’s rights but will be necessary to vindicate his rights.

• by Seosamh Gráinséir for Irish Legal News