Zebaida v Secretary of State for Education

The statutory reference and prohibition regime for teachers may apply where a person was employed or engaged in teaching work when the conduct occurred or when it came to light. The present tense in Education Act 2002, section 141A, cannot be read literally where that would defeat the statutory purpose or produce an absurd result. It does not, however, permit referral of a person who was not employed or engaged as a teacher either when the conduct occurred or when it was referred. A prohibition order made without jurisdiction must be set aside.

Mr Robin Zebaida, a concert pianist and former freelance music examiner, had taught part-time at a school for one term in 2000. He was convicted in 2013 of sexually assaulting a 15-year-old girl in 2012. The National College for Teaching and Leadership professional conduct panel held that it had jurisdiction under section 141A of the Education Act 2002 and Regulation 2 of the Teachers Disciplinary (England) Regulations 2012. It found the allegation proved and recommended a reviewable prohibition order. The Secretary of State instead imposed an indefinite prohibition order.

On appeal, the central issue was whether the statutory reference regime applied to a person who was no longer teaching and had not been employed or engaged as a teacher when the conduct occurred or when it came to light. The court also identified, but did not determine, issues concerning professional misconduct, proportionality and sanction.

1. Appeal allowed. The Secretary of State had no jurisdiction to make the prohibition order on the facts of this case.

2. Section 141A of the Education Act 2002 applies to a person employed or engaged in teaching work. The statutory language must be construed with common sense. Although the literal meaning of the words is important, an interpretation producing an absurd result or defeating Parliament’s intention should be avoided.

3. The court applied the reasoning in Re M (a Minor) (Care Orders) [1994] 2 AC 424. The use of the present tense did not require the relevant condition to continue until the date of the court’s decision where the statutory context showed that the relevant point was earlier.

4. Sections 141D and 141E supported the conclusion. They contemplate referrals concerning teachers whose employment or engagement has ended because of serious misconduct, or would have ended for that reason. Accordingly, a person may be referred where he or she was employed or engaged as a teacher when the conduct occurred or when it came to light, even if no longer teaching when referred.

5. The provision does not extend to a person who was not employed or engaged as a teacher either at the time of the conduct or at the time the conduct came to light or was referred. If Parliament had intended section 141A to apply to anyone who “is or has been employed”, it could have used those words.

6. The court did not need to decide whether the conduct amounted to unacceptable professional conduct or conduct bringing the profession into disrepute, or whether an indefinite prohibition order was proportionate. The appeal was allowed.

• National College for Teaching and Leadership professional conduct panel: on 6 January 2016, found that it had jurisdiction, found the allegation proved and recommended a prohibition order reviewable after two years.
• Secretary of State for Education: imposed an indefinite prohibition order, declining to provide a review period.
• High Court (Administrative Court): allowed the appeal on jurisdictional grounds.