Education unions have launched legal action against the Teaching Regulation Agency over concerns non-white teachers are “overrepresented” in misconduct referrals.
Leadership unions NAHT and ASCL, the National Education Union, teaching union NASUWT and Community have lodged a claim for judicial review of what they called “significant non-compliance” with equalities duties.
They said the TRA’s decision not to collect data on protected characteristics such as age, disability, race and sexual orientation of teachers referred to it made it “impossible to evaluate” how its policies and practices impact different groups.
They also want the TRA to publish data on the protected characteristics of members of the public who make referrals.
In a statement, the unions said they were in particular “concerned that black and minority ethnic teachers may be overrepresented in referrals to the TRA.
“There is a concern about the underlying reasons for such referrals and whether they stem from discriminatory stereotypes, such as inaccurately labelling the teachers’ behaviour as overly aggressive.”
There is “also a concern that, in comparison with heterosexual teachers, the TRA has investigated some LGBTQ+ teachers for alleged sexual misconduct, where there are no grounds for doing so at the referral stage.
“The unions are also concerned that the TRA is electing to investigate teachers even when the allegations made against them lack merit and are unsupported by evidence, only to drop such cases before the hearing stage.”
Prolonged investigations ‘take a heavy toll’
Unions have repeatedly criticised the TRA for how it handles teacher misconduct cases, particularly how long it takes to conclude them.
Schools Week revealed last year how two teachers have been waiting more than eight years for their misconduct cases to conclude, with the “shattering impact” of lengthy waits having “potentially devastating implications”.
And earlier this year the TRA admitted breaching a headteacher’s human rights after taking six years to conclude her case – but banned her from the classroom anyway.
Prolonged TRA investigations “take a heavy toll on teachers, affecting their health, wellbeing, and careers”, the unions said.
“If LGBTQ+ and black and minority ethnic teachers are overrepresented in the TRA’s processes, they will be particularly affected by this.”
They said they had sent a letter before action to education secretary Bridget Phillipson – who is legally responsible for the TRA – on April 3.
However, they said they “did not receive a substantive response within the deadline, so on April 17 the unions submitted a claim for judicial review at the High Court”.
Unions want data on referrers
In their letter before action, the unions said they were told in May 2024 that the TRA was “going to review and reconsider its policy on collecting data about the protected characteristics of its service users”.
In January this year, the TRA informed unions that it would be “disproportionate to gather and retain equalities data”, and “as such, the TRA will continue with its current position not to collect this data”.
Guidance from the Equalities and Human Rights Commission states public bodies must publish data “about the protected characteristics of your employees and others affected by your work, such as those who use your services”.
The unions argued that the General Medical Council, the Nursing and Midwifery Council and Solicitors’ Regulatory Authority, which “exercise very similar functions” to the TRA, “do proactively collect and evaluate ‘hard statistical data’ in relation to the exercise of their functions”.
The unions said they believed “that it may also be the case that black and minority ethnic teachers are disproportionately impacted by the TRA’s processes and procedures”.
Trojan Horse concerns linger
The concern “is reinforced by how the TRA’s predecessor, the NCTL, treated the so-called ‘Trojan Horse’ teachers”. The Trojan Horse affair was an alleged plot by Muslim hardliners to take over state schools in Birmingham.
The NCTL misconduct cases against five teachers caught up in the affair were sensationally dropped in 2017 after an “abuse of justice”.
During the hearing “repeated concerns about race and religious discrimination were raised”, the unions said. “This included concerns about the propriety of NCTL adopting and relying on witness evidence tainted by race and/or religious discrimination.”
The unions want the government to confirm they will collect data on the protected characteristics of those who sit on professional conduct panels, presenting officers and legal advisers, all persons referred to the TRA and even those of members of the public making referrals.
The TRA said it “investigates all alleged instances of serious misconduct by teachers as set out in legislation and our published guidance, irrespective of particular characteristics such as age, disability, race and sexual orientation.
“TRA is mindful of the impact allegations of serious misconduct can have on teachers and has taken steps to reduce the duration of its investigations, including significantly increasing the number of professional conduct panel hearings it holds year-on-year.”
In a school I worked in, there were only 3 members of staff that were Muslim. All 3 were put on support plans and forced out and given bad references so had to leave the profession. Wording of support plans were same, reasons were same even though subjects were wildly different. I was forced out for whistle blowing so there is a wall of silence now in this academy
So here we have an idea of some of the reasons why there is a lack of black and ethnic minority teachers in leadership positions.
Their careers are highjacked by these referrals.
My own experience of interactions with teachers is worrying what I hear.
More has to be done to retain trust and support to help aspirations.