This week, we are venturing outside the realm of pure employment law, and into professional discipline.
Teacher tells putative employer to go f*** themselves – Thomas v Education Workforce Council
Mr. Thomas applied for a job at a local college as a sports teacher. He attended an interview but was unsuccessful. The bad news was relayed to him via email at 4:03PM on 17th December 2019. At 4:19PM, he replied, saying:
“Go f*** your self 😉”
The college reported the email to the Education Workforce Council (the Welsh teachers’ watchdog). The Council decided there was a case to answer and referred him to a Fitness to Practice hearing.
After some toing and froing (including Mr. Thomas saying he did not send the email, and that it could not have been him, because he did not use emoji’s in a professional capacity) the Council found that Mr. Thomas’ conduct fell below the standard expected of a registered person and amounted to unacceptable professional conduct, issuing a reprimand.
Mr. Thomas appealed to the High Court (a right generally afforded to individuals subject to regulatory investigation).
The crux of his argument was that the email was a one-off lapse of judgement – a knee jerk reaction that wouldn’t be repeated, and therefore didn’t warrant a reprimand, and that no regulatory sanction was the more appropriate determination.
He relied on the case Khan v Bar Standards Board  EWHC, which says that behaviour that is “trivial, inconsequential, or a mere temporary lapse, or something that is otherwise excusable, or forgivable” cannot amount to unacceptable professional conduct warranting regulatory sanction.
However, the High Court did not agree with this argument. It said that just because something was a one-off, this did not prevent it from being unacceptable professional conduct. Mr Justice Johnson said that where there was a degree of opprobrium attached to the activity, a one-off incident could absolutely be unacceptable professional conduct. This makes sense: a teacher losing his temper and hitting a child might be a temporary lapse, but it is still severe and warranting of regulatory sanction.
Regulated professionals face a dual burden of disciplinary action: both from their employer but also their regulatory body. If you are a regulated professional, you should be aware that your conduct may invoke sanction that transcends your line manager. The firm is increasingly acting for clients facing regulatory sanction.