“Fitness to Teach”: A Guide to the Law for Education Providers

Your teaching staff must have the health and physical capacity to teach, but in assessing this you must make sure you comply with disability discrimination rules, says Yvonne Spencer

Employers of existing and prospective teachers, lecturers and those entering initial teacher training have a responsibility to ensure that employees have the health and physical capacity to teach and will not put children and young people at risk. The obligation to protect children under 18 in this way must be weighed against the duties on education providers that arise under the Disability Discrimination Act 1995, which gives a duty to make 'reasonable adjustments' so employees are not put at a disadvantage by employment policies, practices and procedures or any physical feature of the workplace. Fitness to teach is an issue that is taken seriously. The Secretary of State for the DCSF has the power to bar an individual from working for a 'relevant employer'; and the power to impose restrictions on an individual's employment, on health grounds. This article examines the relevant law, and procedures that education providers should follow.

The law

The Education (Health Standards) (England) Regulations 2003 set out staffing activities where employers must consider the individual's fitness:

• planning and preparing lessons and courses for children
• delivering lessons to children
• assessing the development, progress and attainment of children
• reporting on the development, progress and attainment of children
• an activity that assists or supports teaching
• supervising, assisting and supporting a child
• an administrative or organizational activity that supports the provision of children and an activity that is ancillary to the provision of education

Delivery of lessons also includes delivery via distance learning or computer-aided techniques. A 'worker' means a person whose work brings him or her into regular contact with children and young people under 18.

Non-teaching jobs covered by the 2003 regulations

Some non-teaching posts are also covered by the medical fitness requirements. These are:

• an activity that assists or supports teaching
• supervising, assisting and supporting the child
• an administrative or organizational activity that supports the provision of education and an activity that is ancillary to the provision of education

Disability Discrimination Act When determining 'fitness'  there is a duty under the Disability Discrimination Act 2005 not to discriminate against a disabled person for a reason related to his or her ability, in all aspects of employment, unless this can be justified. Unfavorable treatment can never be justified if the employer could have made reasonable adjustments — unless adjustments would have made no difference. Less favorable treatment may be justified on the grounds that either: it is the result of a permitted form of selection, or there is a 'material and substantial' reason for it This means that the school or local authority must have a good reason for not engaging the individual, which is relevant to his or her circumstances after taking into account any reasonable adjustments required. The Disability Discrimination Act defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term effect on his or her ability to carry out day-to-day activities. People with disabilities and long-term health conditions can and do make an important contribution to the school curriculum — as employees, in raising the aspirations of disabled pupils, and in educating non-disabled people about what it’s like to have a disability. Duty to promote equality In 2006, the Disability Discrimination Act amendment regulations introduced changes to employment in the education sector, dealing with post-16 education. In addition, the Disability Discrimination Act 2006 introduced a new statutory duty on all public authorities, including universities, to promote disability equality. This includes the positive duty to promote equality of opportunity between disabled people and those who are not disabled, and to promote positive attitudes towards disabled people.

Reasonable adjustments in the workplace
A person's physical capacity to manage his or her work may be enhanced with appropriate technical or human support, and with advice from experts in occupational health.

Any expert commissioned by the employer must be a qualified medical practitioner with specialist knowledge of occupational medicine. S/he should provide reports for:

• initial teacher training candidates
• an employee who has become disabled for the first time
• an individual whose existing condition worsens during the course of his or her career
• someone who applies for a transfer or promotion to a post where his or her disability may be a factor

Candidates may be allowed to submit expert evidence from other sources but it must be clear at the outset whether the employer or the employee/candidate will pay for the the additional reports. When schools receive the report they must take decisions themselves on questions about the health and physical capacity of individuals, teachers or candidates. They cannot confer with the Secretary of State for an adjudication on such questions.

The only exception to this is when the Secretary of State is considering barring or suspending a person from employment on medical grounds, or to make such employment subject to conditions.

Assessing medical fitness for ITT The following procedure for initial teacher training providers should be followed in assessing whether an applicant has the health and physical capacity of entrance to teacher training: 1.  All applicants must complete a declaration of health questionnaire, marking it 'medical in confidence'. 2.  A medical/occupational health advisor must assess whether the applicant has the health and capacity to teach. S/he should involve the applicant wherever possible. 3.  If further medical evidence is necessary, contact the GP (applicant's consent will be required). 4.  A risk assessment should be undertaken. If reasonable adjustments need to be made, this should be discussed with the applicant. 5.  The medical advisor should provide a recommendation, giving a full explanation of any discussion about reasonable adjustments, or any concerns s/he has about the applicant. 6.  The ITT provider should make a final decision, based on the medical advisor's recommendation. 7.  The applicant is accepted. 8.  Any applicant not accepted should be notified of rejection and told about appeal procedure (below). 9.  Notify individuals of the result of an appeal. Appeals against rejection on medical grounds Stage 8, above, refers to an appeals procedure. If a candidate is rejected on medical grounds, training providers should: invite the candidate to provide any further medical information that s/he feels is relevant refer the case to another specialist occupational health physician — preferably one with experience in teachers’ occupational health. The specialist should not be the one who made the original recommendation, and should have no connection with the provider. Confidentiality of medical information Medical advisors are responsible for the confidentiality and privacy of the procedures under medical ethical practice. All information given by a candidate to a health professional is also subject to the common law duty of confidence. Such information should not be used for any purpose, other than the one for which it was provided, without the consent of the individual. Medical information cannot be passed to a third party without the consent of the individual to whom it relates, unless there is some overriding public interest in doing so — such as, for example, the need to protect others from harm.

Medical fitness for employment of a teacher
Employers should follow the following procedures in assessing whether an applicant has the health and physical capacity for teaching:

1.  A medical/occupational health advisor must assess whether the applicant has the health and capacity to teach, and give a recommendation to the employer.

2. If further medical evidence is required or a specialist appointment is necessary, this should be discussed with the applicant.
3.  The medical advisor should consider whether any reasonable adjustments need to be made. If this is the case, then the medical advisor should advise the employer.
4.  The medical advisor should provide a recommendation on whether the applicant is fit for teaching. S/he should give the employer a full explanation with the recommendation.
5.  The final decision rests with the employer, taking into account its obligation under the Disability Discrimination Act to make reasonable adjustments.

Continuing fitness of those in employment The local authority or governing body must not appoint anyone to, or continue to employ them in, a relevant activity unless s/he has the health and physical capacity for such employment. Teachers may not be appointed to relevant activities while they are receiving any ill-health retirement benefits from the Teachers' Pensions Agency awarded after 31 March 1997 on the grounds of their permanent incapacity to teach. However teachers who are in receipt of ill-health retirement benefits awarded before 1 April 1997 may undertake some part-time re-employment without automatic cessation of pension benefits, provided they have the necessary health and physical capacity for that employment.

Teachers changing schools

When appointing a new teacher with recent previous experience in the UK, the employer's medical advisor may ask to see medical records from previous employment to decide whether the person has the health and physical capacity to teach. The prospective employer must obtain the teacher's consent before requesting medical evidence from a previous employer. If a prospective employee fails to disclose relevant information, or provides false information and this comes to light later, consider referring the individual under the barring scheme to the Secretary of State.

Note that this procedure may change once the new independent vetting and barring board comes into operation in August 2008.

Teachers who become medically unfit Schools should have a clear written policy for handling staff sickness absence and for taking action to reduce absence levels. This should include procedures drawn up in consultation with staff for monitoring absence (and taking appropriate action), and promotion of good health. Sickness absence monitoring procedures should: identify causes of absence on grounds of mental ill-health include means of prevention and support, in relation to staff sickness and absence recognise the circumstances that can lead to ill-health consider disability and reasonable adjustments when dealing with ill-health create a climate where disability can be declared and reasonable adjustments made guide staff to report absences on the first day of any absence and beyond provide for regular contact with absent staff and, on each occasion, agreement on the date and form of the next contact provide for recording the number of absences and working time lost for each absence of each member of staff, and the reason for the absence where known provide for return-to-work interviews define trigger points for action based on an individual's cumulative absence set clear guidance for referrals to occupational health services

Suspension or dismissal The employers of teachers in maintained schools have the power to suspend teachers where necessary if their condition poses a risk to the safety and well-being of children or colleagues. Suspend only on the advice of an appropriately qualified medical advisor about the risks associated with the individual's health. Each case should be judged on its circumstances. Where the issue of dismissal of a teacher on medical grounds arises, the employer must give that teacher an opportunity to submit medical and other evidence and to make representations, and must consider such evidence and representations. If the teacher requests, the employer must arrange for a medical examination. The teacher's own medical advisor may, on request, be present at the examination. The employer should consider whether reasonable adjustments would enable a disabled teacher to perform effectively.

Barring procedures

The medical advisor who thinks that there may be health grounds for barring an employee, trainee teacher or prospective trainee teacher from working with children, must consult the DCSF. If the DCSF decides to consider barring or restricting an individual's employment, the individual will be informed of that fact and invited to make representations, including submitting medical evidence and any other materials. The DCSF will usually require a medical report arranged through the department's medical advisor, which means referring the individual to an appropriate specialist. The department normally pays the specialist fee. The Secretary of State will use this report to help make the final decision. The department may invite the individual to attend an interview. When the representations are complete, officials in the department acting for the Secretary of State will consider the information. It will be further examined by Sir Roger Singleton, of the Independent Barring Board, supported by his panel of experts, who will advise the Secretary of State, who takes the final decision. The individual will be informed of the decision in writing and given a copy of any direction made. S/he may be put on List 99.

List 99 appeal
An individual who is placed on the list may appeal to the Care Standards Tribunal, providing s/he files a notice of appeal with the tribunal within three months of the date s/he receives the decision. The procedures will change in Autumn 2008 when the new barring scheme comes into operation.

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Yvonne Spencer is a solicitor advocate with Fisher Jones Greenwood LLP