Following the tragic death of primary headteacher Ruth Perry, calls for teachers and schools to boycott Ofsted have grown and teaching unions have said inspections should be paused.
But what are the potential legal ramifications of boycotting an inspection?
What powers does Ofsted have to inspect?
Ofsted’s jurisdiction is limited to England and most of its powers, including those relating to inspections, stem from the Education Act 2005. Section 5 of the act relates to graded inspections, which appear to be at the heart of the controversy.
It also lays out the duties of the chief inspector, which include the duty to inspect schools in England and even specifies particular areas that must be reported on, eg, pupil achievement.
Section 10 of the act makes provision for rights of entry to school premises for the inspectorate at all reasonable times.
It is a criminal offence for anybody to “intentionally obstruct” an Ofsted inspection with the offence carrying a potential fine of up to £2,500.
What does ‘intentionally obstruct’ mean?
While the Education Act 2005 is not clear on this, guidance from the Crown Prosecution Service gives an indication of what might meet this definition.
Specifically, wilful and deliberate actions that make it more difficult for inspectors to execute their duties.
Boycotting an inspection or refusing to take part fully by only cooperating with safeguarding requests, for example, would appear to meet this definition.
What could happen to teachers if they boycott an inspection?
There are a number of potential serious consequences that teachers should be aware of.
In addition to the risk of being prosecuted and fined for the criminal offence mentioned above, there are potential employment consequences, too.
Refusal to engage with Ofsted could constitute a breach of contract as most contracts are likely to have implied terms to support any Ofsted process, particularly in light of the safeguarding responsibilities of the inspectorate.
Boycotting an inspection in this way could also reach the threshold for “gross misconduct”, which provides grounds for dismissal subject to an appropriate disciplinary process.
Refusal to follow a managerial instruction to comply with an inspection either from a headteacher or, in the case of a headteacher’s refusal, the governing body, could also constitute a contract breach.
Additionally, there are arguments that could be made around these actions potentially bringing the school or employer into disrepute, which could also be grounds for disciplinary action.
The fact that the offence is a criminal one may add further weight to these arguments.
How does this relate to Teachers’ Standards?
The Teachers’ Standards set out specific behaviours that teachers in England must adhere to, including acting within statutory frameworks surrounding their professional duties and also in upholding the rule of law.
It is possible that a refusal to engage with an inspection could constitute misconduct under these standards and therefore leave teachers open to a professional conduct hearing by the Teaching Regulation Authority.
Are teachers better protected through collective action?
Not in the short-term, no.
Collective action around a boycott could be judged to be action short of a strike.
However, unless this action was arranged through a formal union ballot, it would be classified as “unofficial industrial action”, meaning that the legal protections surrounding official industrial action would not apply and staff could be at risk of dismissal or other disciplinary sanctions.
What’s the likelihood that teachers will be prosecuted or disciplined?
This is difficult to answer as it is virtually uncharted territory.
With any potential controversy, teachers and school staff should exercise caution as default and seek advice and guidance from organisations like Edapt, or a representative of a trade union if you are a member.
Alistair Wood is the chief executive of Edapt
