Teacher misconduct is a serious issue with far-reaching consequences for both students and the education system as a whole.
The trust placed in teachers and their professionalism are vital for shaping the minds of future generations.
Teacher misconduct can take various forms, ranging from unethical behaviour to legal violations.
There are guidelines and codes of conduct teachers are expected to adhere to, such as the Education Bureau’s Guidelines on Teachers’ Professional Conduct (“GTPC“).
Violating these standards can result in disciplinary action, including investigation and cancellation of teacher registration under section 47 of the Education Ordinance Cap.279.
In this article, we discuss the various issues surrounding teacher misconduct in Hong Kong and the measures in place to address and prevent these issues.
We will discuss (1) teachers engaging in inappropriate communication with students; (2) pitfalls of social media; and (3) unlawful procurement practices.
1. Inappropriate Communication with Students
Teachers are expected to maintain appropriate boundaries and ensure their interactions with students are professional and respectful.
Engaging in one-on-one communication with students of the opposite sex through personal messaging apps raises concerns regarding potential risks and power imbalance.
When interacting with students, teachers should maintain professional boundaries to avoid civil liability for sexual harassment.
The Sexual Discrimination Ordinance (Cap. 480) (“SDO”) in Hong Kong applies to educational establishments, including communication between teachers and students.
Under section 2(5) of the SDO, sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, or other unwelcome conduct of a sexual nature that would offend, humiliate, or intimidate a reasonable person.
These acts can occur directly or indirectly, in physical or verbal form.
The civil penalties for sexual harassment can be severe, including damages for injury to feelings, dismissal, punitive or exemplary damages, and court declarations.
In Hong Kong, the monetary awards for injury to feelings generally follow the “Vento bands”, with the amount depending on the severity of the case.
By being aware of the civil implications of the SDO and maintaining professional boundaries, teachers can avoid the risk of sexual harassment claims and foster a safe, respectful learning environment for their students.
2. Pitfalls of Social Media
The increasing use of social media has introduced new considerations regarding teachers sharing school-related content online.
While casual sharing of school life may seem harmless, teachers should be aware of the potential civil consequences.
Under section 2 of the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”), any information that can directly or indirectly identify a living individual is considered personal data. This includes photographs of students.
If teachers upload photos of students’ daily activities without obtaining proper consent, they may violate the PDPO.
Data Protection Principles in Schedule 1 PDPO require personal data to be collected lawfully and fairly, and individuals should be informed of how their data will be used. Under Principle 3 “Use of Personal Data,” sharing this data for purposes beyond the original intent generally requires obtaining consent from the individuals involved.
The civil penalties for breaching the PDPO can be severe.
Under Section 66 of the PDPO an individual who suffers damage by reason of a contravention of a requirement under the Ordinance by a data user may be entitled to compensation from the data user for the damage.
In accordance with the GTPC, to avoid legal pitfalls and maintain positive teacher-student relationships, teachers should obtain consent from students or their parents before collecting or sharing personal data, such as photos or videos, especially in situations unrelated to teaching duties.
When collecting personal data from students, such as video or audio data for online learning, schools should inform parents and students in advance.
Teachers should exercise caution when tagging or sharing the personal data of others on social media platforms, ensuring they have explicit permission to do so.
Teachers need to strike a balance between sharing work experience and maintaining privacy boundaries, taking into account legal requirements, school policies, and the well-being of students and their families.
3. Unlawful Procurement Practices
The Prevention of Bribery Ordinance Cap.201 (“POBO”) criminalises bribery of private individuals and public officials, including teachers. In addition to the criminal offences under the POBO, teachers may also face civil liabilities.
Teachers could contravene the Misrepresentation Ordinance Cap.284 during the process of unlawful procurement. For a successful claim of misrepresentation, there must be (1) a statement of fact, (2) that statement must be false, and (3) the false statement must have induced the innocent party to enter the contract.
The innocent party would apply to the court to rescind the contract and claim compensation.
Teachers who conduct unlawful procurement practices might also be at risk of civil fraud under tort of conspiracy.
To prevent unlawful procurement in schools, it is essential to adhere to guidelines and establish proper governance and internal control systems.
The Governance and Internal Control in Schools Guidelines published by the Education Bureau recommend teachers or school staff to declare any actual or potential conflicts of interest, and if necessary, duties should be reassigned to other staff members to avoid impropriety.
Maintaining proper documentation of the procurement process, including decisions and justifications, helps ensure transparency and accountability.
Teachers should adhere to existing procedures for procurement, avoiding shortcuts or favouritism.
Schools should maintain lists of suppliers or service providers for different goods and services, and when inviting bids, it is advisable to seek suppliers from the list.
If there is no existing list, suppliers or service providers should be sourced based on predetermined criteria, avoiding reliance solely on user nominations.
By implementing these measures, schools can reduce the risk of bribery and irregularities in procurement, ensuring transparency, fairness, and accountability in the process.
How We Can Help
When allegations of teacher misconduct arise, various parties may require specialized legal services to navigate the complex landscape of investigation, remediation, and potential litigation.
We have experience in providing legal advice relating to teacher misconduct for the teacher, school, and parents of the students.
We can also help enhance policies and procedures to prevent future incidents, minimizing the school’s risk exposure.
Ultimately, the teaching profession must be safeguarded with integrity and ethics.
Teachers must uphold the highest standards of professionalism to fulfil their vital role in shaping young minds.
Disclaimer: This article is provided for information purposes only and does not constitute legal advice. Specialist advice should be sought about your specific circumstances.
For further information, please contact:
Nathan Wong, Partner, Haldanes
nathan.wong@haldanes.com
