1. Forum on HEI Procedures for Suitability for Social Work Legal Perspectives London House, Goodenough College Monday, 3 November 2008

2. Introduction Professional suitability touches on a number of different areas of the law and institutions will be exposed to a number of different potential liabilities when discharging their obligation to assess professional suitability Focus on potential risk areas Practical guidance on the implementation of suitability procedure

3. Suitability procedure Allegation in relation to suitability Initial investigation of allegation Attempt to resolve at informal stage Formal stage comprised of hearing before panel or committee Decision Appeal

4. Potential risks Contract Terms of suitability procedure are terms of the student contract Failure to adhere could constitute breach of contract Legal proceedings Usual civil remedies apply e.g. damages for loss resulting from that breach Costs risk, but legal aid OIA/Appeal

5. Potential risks Public law Principles of natural justice, fairness and Human Rights Act Apply to suitability process eg: Right to fair hearing, Right to adequate notice of case being met, Right to be given reasons for decision If procedures are not compliant, it may be necessary to make adjustments Judicial review of decision but usually no damages Overlap with contract

6. Potential risks Discrimination Age, Sex, Race, Religion (ignore differences) Disability (recognise differences and take positive steps to neutralise differences) Victimisation Usual civil remedies plus damages for injury to feelings Equality and Human Rights Commission Investigation and notice of unlawful acts Application to court for interim injunction to prevent unlawful acts Legal assistance to individuals Institution of, or intervention in, judicial review proceedings

7. Potential risks Defamation A statement will be defamatory if it could be said to lower a person's reputation in the estimation of "right thinking" members of society. Allegation of professional misconduct or professional unsuitability likely to be defamatory Strict liability, but defences (fair comment, qualified privilege, justification) Civil remedies Confidentiality Implied term of the student contract Overlaps with defamation and DPA Civil remedies.

8. Potential risks Data Protection DPA protects personal data and sensitive personal data HEI likely to be processing sensitive personal data e.g. Information about criminal convictions, disability etc. Processing of the data must be fair and lawful. Restrictions on disclosure of data A breach of the DPA could result in a fine or liability for damages in legal proceedings, although the level of any damages is likely to be low Enforcement by Information Commissioner

9. Implementation Early identification of decision making body Mitigate risks of conflict issues Information barriers Maintain impartiality of decision making body Independent legal advice to decision making body Document control FOI/Subject Access Disclosure OIA

10. Implementation Focus on suitability Courts reluctant to usurp academic or pastoral judgment Primary facts from which secondary findings are made should be more cogent depending on the seriousness of secondary findings Process not concerned with complaints or claims arising out of process May need to consider legal arguments which impact on question of suitability e.g. failure to make reasonable adjustments Simultaneous proceedings Findings of fact by alternative tribunal Appeal

11. Implementation Apply internal procedures carefully Easiest to slip up on procedure Seek guidance from Registry / advisors where unsure Student right to legal representation Reasonable adjustments Panel’s handling of hearing Proactive in relation to the collation and consideration of evidence Exercise caution in relation to procedure and appear reasonable Witnesses Written decision

12. Julian Sladdin, Senior Associate & Chris Breen, Associate Pinsent Masons LLP www.pinsentmasons.com www.pinsentmasons.com Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) and regulated by the Solicitors Regulation Authority. The word 'partner', used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who has equivalent standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP's registered office: CityPoint, One Ropemaker Street, London EC2Y 9AH. We use 'Pinsent Masons' to refer to Pinsent Masons LLP and affiliated entities that practise under the name 'Pinsent Masons' or a name that incorporates those words. Reference to 'Pinsent Masons' is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. For important regulatory information please visit: www.pinsentmasons.com/regulatory. www.pinsentmasons.com/regulatory