Dumfries & Galloway Council v Carroll

Under Regulation 4 of the Requirements for Teachers (Scotland) Regulations 2005, a local education authority is prohibited from employing an unregistered teacher. A teacher is registered if that teacher’s particulars are recorded in the GTCS Register. The provision does not impose a statutory bar merely because the teacher is registered in a different sector or subject from that of the post.

The organisation of the Register and differing registration criteria under the Public Services Reform (General Teaching Council for Scotland) Order 2011 do not add a sector-specific condition to Regulation 4. Suitability for a particular teaching role remains for the authority to assess under Regulation 3.

For unfair-dismissal compensation, pension loss need not end when future earnings loss is projected to end. The decisive question is causation and the evidence available.

The claimant was employed by the Council as a principal teacher in a secondary school. He was registered with the General Teaching Council for Scotland as a further-education teacher, but not then as a secondary-school teacher. The Council dismissed him after concluding that he lacked the required registration and could not obtain it.

An Employment Tribunal upheld claims for unfair and wrongful dismissal. It held that continued employment was not barred by Regulation 4 of the Requirements for Teachers (Scotland) Regulations 2005. It also awarded compensation, including pension loss, subject to a 50% Polkey reduction and a 25% reduction for contributory conduct.

The Council appealed on the construction of Regulation 4, the assessment of loss during illness, and pension loss. The central issue was whether registration had to relate to the teaching sector in which the employee worked.

1. Appeal dismissed. The Employment Tribunal did not err in holding that the claimant’s continued employment was not subject to a statutory bar.

2. Regulation 4(2) of the Requirements for Teachers (Scotland) Regulations 2005 contains a complete definition of a registered teacher: a teacher whose particulars are recorded in the GTCS Register. It does not require registration in a sector, subject or category corresponding to the role. The cross-reference to the Public Services Reform (General Teaching Council for Scotland) Order 2011 identifies the relevant Register; it does not import further employment restrictions.

3. Article 14 of the 2011 Order gives GTCS a discretionary power to organise or subdivide its Register. Its examples of primary, secondary and further-education registration do not confer a special statutory status on those categories. Reading them as restrictions on employment would create impractical and unsupported consequences for other information recorded in an entry. Regulation 3 instead leaves the authority responsible for deciding whether a teacher has the professional skills and knowledge required for the allocated duties. Registration may inform that assessment but is not determinative.

4. The Tribunal was entitled to find that the dismissing officer did not genuinely believe that continued employment contravened an enactment. The Council therefore established neither the statutory-bar reason in section 98(2)(d) nor the asserted alternative SOSR reason. The dismissal was unfair.

5. The Tribunal was entitled to assess earnings loss at full pay. It found that the claimant’s ill-health resulted from the employer’s actions, rather than a supervening event, and its factual causation finding disclosed no error of law.

6. [2010] ICR 596 did not require pension loss and projected future earnings loss always to be coterminous. Where an actual event breaks causation, pension loss cannot be treated differently from other remuneration. Here, however, the Tribunal was making projections and had no evidence about the pension benefits of future employment. It could assess pension loss to age 65 on the evidence before it.

• Employment Appeal Tribunal: dismissed the Council’s appeal.
• Employment Tribunal: judgment promulgated on 4 May 2018. It upheld the claimant’s claims for unfair dismissal and wrongful dismissal, awarded compensation, and confirmed its decision on reconsideration.