23-24/65

I write with reference to your request for information on 15 November (FOI 23-24/65) which we have handled under the Freedom of Information (Scotland) Act (FOISA).

In your request you stated the following:

I can't find any information anywhere which insists and employer must investigate matters first followed by the SPSO if relevant so I am now requesting a copy of all information the GTCS holds on this requirement to see it for myself. I also also interested in information related to a teacher no longer working with their employer where the allegations took place. I have just raised a concern with a council about two teachers one of whom has since moved on. I don't expect them to respond because their solicitors have told them not to respond to me after starting further legal action against them and also raising fraud allegations with them. In this scenario please provide all information held by the GTCS in relation to this as well, i.e., what happens if a complaint is about a teacher who has moved employer.

Based on your request, you have submitted two discrete queries being information regarding the requirement that an “employer must investigate matters first followed by the SPSO if relevant” and “what happens if a complaint is about a teacher who has moved employer.”

Regarding your first query, point 5 of our Fitness to Teach Threshold Policy states:

In addition, we cannot investigate referrals that we consider to be “frivolous or vexatious”. There are a number of factors that could contribute to a determination that a referral - or the making of a referral at this time - is frivolous or vexatious. These factors are that the referral:

• Has been made prematurely i.e. before the local or other more appropriate first points of referral have been used, for example the relevant Headteacher, the school, the employing local authority (where applicable) and/or the police. Importantly, when we decide that a referral is frivolous on the basis that it is premature, we are not saying that the referral is itself frivolous simply that it has been made too early.

Therefore, as the information is otherwise accessible, I have applied section 25 of FOISA.

With regards to the Scottish Police Services Ombudsman (SPSO) our website states that when making a referral one should consider whether the referrer has escalated the matter through each stage of the process, including to the Scottish Public Services Ombudsman. As the information is otherwise accessible, I have therefore applied section 25 of FOISA.

Regarding your second query, point 6 of our Fitness to Teach Threshold Policy states that where a teacher “resigns or otherwise stops working for the employer in circumstances where, but for leaving that employment, the employer would have or might have dismissed the teacher on grounds of misconduct or incompetence” the employer must refer the case to GTC Scotland. This reflects Article 25 of the Public Services Reform (General Teaching Council for Scotland) Order 2011 which is a statute – GTC Scotland’s governing legislation. As the information is otherwise accessible, I have therefore applied section 25 of FOISA.

By way of our duty to provide advice and assistance under section 15 of FOISA, I can explain that where a teacher has moved employers, we would still require a referrer to exhaust all local avenues by first approaching the teacher's previous employer. Should a local authority then refuse to investigate the allegations we would be able to proceed as per the Threshold Policy.

I hope this information is helpful. If you are dissatisfied with this response, you may contact informationgovernance@gtcs.org.uk to request GTCS conduct a review of this decision. You should describe the original request and explain your grounds of review. You have 40 working days from receipt of this decision to submit a review request. When the review process has been completed, if you are still dissatisfied, you may use the Scottish Information Commissioner's guidance on making an appeal to make an appeal to the Commissioner.

I refer to your request dated 30 November 2023 for a review of the response you received on 30 November 2023 to your original information request (FOI23-24/65). To enable your request to be considered afresh and impartially by someone who had not responded to your original request, I was appointed to undertake the internal review. 

I have considered your review request, the information you originally requested and our organisation’s obligations under the Freedom of Information (Scotland) Act 2002 (FOISA). I have concluded that the original decision should be upheld without modification.    

Your original request   

In your original request you stated the following:  

I can't find any information anywhere which insists an employer must investigate matters first followed by the SPSO if relevant so I am now requesting a copy of all information the GTCS holds on this requirement to see it for myself. I am also interested in information related to a teacher no longer working with their employer where the allegations took place. I have just raised a concern with a council about two teachers one of whom has since moved on. I don't expect them to respond because their solicitors have told them not to respond to me after starting further legal action against them and also raising fraud allegations with them. In this scenario please provide all information held by the GTCS in relation to this as well, i.e., what happens if a complaint is about a teacher who has moved employer.  

We responded to your request for information on 30 November2023 by applying section 25 of FOISA, which indicates that the information requested is otherwise accessible, to a portion of the requests and pointed you to the relevant document (Point 5 of our Threshold Policy).

On 30 November 2023, you sent an email requesting we review our decision under section 20(1) of FOISA. We requested that you clarify your request on 1 December to which you responded on the same day. 

Your internal review request   

In your review request you state: 

With regard to point one I am not stating that the GTCS is withholding information. It may be that this is all the GTCS holds on this matter if so please confirm. I raised my concern because a named individual deviated from what the GTCS provided to me with her position in the attached emails. She did so in relation to two referrals I had submitted being designated frivolous in part due to me not raising it will the employer first when in fact I had. I was confused due to this so I sought further clarification from the GTCS as I did not want the same happening again hence the named individuals responses. 

Where does it say that an employer must investigate matters related to employment first (it does not). As for the SPSO being appropriate if an employer does not respond its wrong. The SPSO by law can't investigate the conduct of teachers, that is the job of the GTCS if its alleged that their conduct has fallen significantly below the expect standard. 

As such, I am concerned that I may have been misled by the GTCS hence my FOI. 

Our response  

Based on your review request, it appears that you are looking for us to confirm that the information we provided reflects all the information we hold on the requirement that an employer must first investigate a referral before GTC Scotland does. Accordingly, I can confirm that Point 5 of our Threshold Policy reflects our position entirely with regards to the requirement that an employer investigate an issue and is the relevant record that we hold containing this information.  

To recap, it states that we consider a referral premature when it has been submitted “before the local or other more appropriate first points of referral have been used, for example the relevant Headteacher, the school, the employing local authority (where applicable) and/or the police.” This makes clear that there does exist a requirement that employers must investigate matters first.

As such, our original decision applying section 25(1) of FOISA stands without modification. 

You have also raised concerns that are not grounds for review within the internal review process but as part of our duty to provide advice and assistance under section 15 of FOISA we have considered them below.  

Specifically, you indicate in your clarification to us that what a named individual told you is materially different to our response to your Freedom of Information request. In providing us with a copy of the communication you received, I can see that the advice the named individual gave you is consistent with Point 5 of our Threshold Policy, namely that “behaviour must be investigated by the employer in the first instance”. The named individual went on to say that the Scottish Public Services Ombudsman (SPSO) “cannot investigate individual teachers” but suggested that it would be within their remit to look into the employer’s refusal to investigate the matter. This is because the SPSO investigates complaints about local authorities, and it is the local authorities themselves that are the employers of teachers working in the publicly funded schools in their area. I am therefore of the view that the named individual provided you with the correct advice. 

I hope that this has been of some assistance but if you remain dissatisfied with the responses you have received, you have the right to appeal to the Scottish Information Commissioner. You must do so within six months of receipt of this response. The Scottish Information Commissioner’s guidance on making an appeal describes the process, including the application form. Further information, including relevant contact details is available on the website.