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Created: 26 July 2010 | Last Updated: 04 April 2013 | Printer Friendly Version Printer Friendly Version | Make Text Smaller Make Text Larger |

the law and the teacher

From time to time members may require legal advice on matters related to their employment. These matters may relate to criminal matters, personal injury or employment law.

 

Legal Advice

Where a member requires legal advice on a matter related to their employment contact should be made in the first instance with local association secretaries or branch officials. Representation is arranged in accordance with the EIS Case Handling Protocol.

The funding of all legal casework is determined by the Employment Relations Committee. Once a decision has been taken to authorise funding contact will be made with an advising solicitor.

The EIS normally engages specialist lawyers from two large well established firms. The case is then kept under review by the Committee through a full time official or officer who shall advise the Employment Relations Committee on the conduct of the case. Under the constitution the decisions of the Employment Relations Committee are final.

Members should note that the EIS will not provide legal representation or funding for casework if the matters under consideration take place when the individual is not in membership. The Institute will not pay the fees of solicitors and other where they have been instructed without EIS knowledge and consent.
 
The Institute does however provide a free legal helpline which provides advice to members on all matters which do not have to be related to the member’s employment.
 
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Authority Liability
Responsibility for accidents to pupils, teachers or others in education establishments normally lies with the education authority who, of course, are insured against successful claims.
Where a pupil is injured, it is unlikely that a teacher could be held liable unless gross negligence, malice or intent were established. If, however, a teacher has negligently failed to carry out the authority's instructions, the teacher could be the subject of disciplinary proceedings.
 
 

Accidents to teachers
Where the injury is to the teacher a successful claim must show negligence on the authority's part and any contribution to the accident by the teacher may be reflected in the amount of damages awarded.
Members injured at work should contact their local association secretary for advice on making a claim for compensation. They should ensure that the accident is recorded in accordance with the authority's procedures.
 
Assaults
The headteacher should be informed immediately of any assault on a teacher and the incident should be reported to the police. It is for the police to investigate the complaint and on their report for the procurator fiscal to take such action as is appropriate.

Teachers have no right subsequently to refuse to teach a pupil found guilty of assault or suspended. However, a risk assessment should be carried out before a decision is taken on returning the pupil to the school/class.

The local association secretary should be contacted for advice on this matter. In certain cases pressure may be brought to bear on the authority by the concerted action of teachers within the school. Such action should not be undertaken without the knowledge of EIS headquarters.
 
 
Charges
Alleged assaults by teachers should be reported immediately to the Employment Relations Department at EIS Headquarters. Normally teachers are advised to co-operate with police - or other investigators - though not to the point of self-incrimination.

A teacher asked to attend a police station "to help with inquiries" may exceptionally and, according to the nature of the possible charge, be accompanied by a solicitor appointed by the EIS.

If a teacher is arrested and/or detained, (the police may now detain a person without legal representation for up to six hours), the teacher is advised to make no statement and more importantly to sign no statement until a solicitor has provided advice.
 
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General Teaching Council Scotland (GTCS)
All convictions of teachers are reported by the Crown Office to the GTCS Registrar and subsequently to the Chair of the General Teaching Council Scotland.

If the conviction is such as to raise the question of a teacher's suitability to continue teaching, the offence is considered by the Investigating Sub-Committee, to which written submission on the member's behalf may be made.

If it is decided that there is a case to answer that matter will be referred to the Disciplinary Sub-Committee before which the teacher will appear and is entitled to representation.

The Disciplinary Sub-Committee has power to instruct the Registrar to remove the teacher's name from the register either immediately or at a specified date should there be any repetition of the offence. A teacher whose name has been removed from the GTCS register may not teach in a state school in Scotland.

Warning to teachers
It is all too easy for a teacher, in the vain hope of avoiding publicity, to plead guilty at trial in the Sheriff or District Court. Members are advised to consult a solicitor who is aware of the GTCS’ locus in the convictions of teachers and the professional consequences of a guilty plea.

Where the charge is connected with theft, sexual offences, alcohol, perverting the course of justice (eg giving false name), virement or misuse of monies, the advice of the EIS should be sought.
 
Parent councils
Questions have arisen as to the right of a Parent Council to discuss the professionalism/conduct of a member of the teaching staff. The Parent Council has no power in law to discuss such matters.
 

Overpayment of salary
Where an authority makes an error in payment of salary, it has the right of recovery as long as in doing so the recovery is just and equitable in the circumstances.

If, for example, an age allowance is not halved or having been informed that a teacher is an ordinary graduate the teacher is paid as an honours graduate, then recovery of overpayment is possible.

If, at the request of the teacher or at the authority's instigation, the service of the teacher is recalculated at any time, no recovery of overpayment is possible and the new assessment is effective from the next full pay month.

Where, for any reason, a mistake in salary has been made, the authority is required to correct the error as soon as it is discovered.

Where recovery of payment is sought by an authority on the grounds of clerical error, a clear description of the error should be provided and the agreement of the teacher obtained as to the rate of repayment. This should never be less than the rate at which the overpayment accumulated.
 
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Defamation
Slander or libel occurs when an untrue and damaging statement is spoken or written and thereby communicated to others. Truth is a defence against accusations of either.

Matters of public interest, privileged exchanges, genuine ignorance of the implication of the defamation, offers to make amends, e.g. public retraction, can all affect the outcome of defamation proceedings.

With regard to teachers it is accepted that non-malicious allegations by parents, based on reports of pupils are unlikely to be actionable, otherwise complaints against teachers would be inhibited to an unacceptable degree.

Once, however, a complaint has been investigated and found to be groundless, further repetition of the same or similar allegations could give rise to court proceedings.

Teachers are properly vigilant of their professional reputation. Unfortunately, and too often, the least effective means of defending a reputation is a court action for defamation due to the publicity should action attracts.
 

Employment Relations Committee: servicing of members
The Employment Relations Committee consists of serving teachers with experience of most of the difficulties with which their colleagues are presented. The Committee is informed of the conduct of every case involving legal assistance and of all other cases that have implications for the generality of teachers.

Under the EIS Constitution, the decisions of the Employment Relations Committee are final. Members can be certain that all aspects of cases before the Committee are treated with the greatest care.

The Committee is serviced by the Employment Relations Department. At the disposal of the Committee are our advising solicitors who specialise in particular aspects of the law which affect teachers.

The Committee reports its work to Council in the most general terms but maintains full confidentiality in respect of individual cases.
 
 
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