Determining whether or not Complaints are Frivolous, Malicious or Vexatious Practice Statement

1 Introduction

Investigating Panel Conveners are able to determine, at the initial consideration stage of part 2.1 of the Fitness to Teach and Appeals Rules 2012 that complaints are frivolous, malicious or vexatious. This is an important decision as there is a clear public interest in ensuring that legitimate complaints are investigated. There is also a potential detriment to respondents in being investigated by GTC Scotland following a complaint which is vexatious or malicious. In addition there is a resource impact on the Fitness to Teach team both in dealing with complainants who are unhappy at the decision that their complaint has been determined to be vexatious, or in investigating complaints which have no merit. There is an impact on the expeditious progress of other cases if resources are spent in these areas.

A determination that a complaint is frivolous, malicious or vexatious has the effect of closing a case without any investigation. It must be a decision that is carefully considered, well justified and in accordance with the appropriate tests. At this initial consideration stage Investigating Panel Conveners are required to make their determination solely on the information provided by the complainant, and therefore without the respondent’s response.

Determining whether a complaint is frivolous, malicious or vexatious at this stage may not always be possible or may involve a process of assumption, inference or prediction, which is not desirable.

It should be borne in mind that if complaints are investigated, and during the process of investigation it becomes clear that the complaint would meet the test for being considered frivolous, vexatious or malicious, the Investigating Panel can determine that there is no case to answer and conclude the case.

It may be that only with information provided by the respondent or the local authority, can it be established that the complaint should not have been investigated on the grounds of it being malicious or vexatious.

This is a consequence of the Rules as currently drafted, as the determination of frivolous or vexatious is one which can only be made at the initial consideration stage. Finally, it may nonetheless be appropriate to investigate cases which may have a malicious element if there is still an allegation of professional misconduct.

2 Meaning of frivolous, vexatious and malicious

The generally accepted meanings of these words are as follows:- • Frivolous – trivial, trifling or futile, not serious

• Vexatious – causing or tending to cause irritation or distress; not having sufficient grounds for

action and seeking only to cause annoyance

• Malicious/...

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• Malicious – bearing active ill-will or spite; having wrongful intention toward any other

Complaints that are frivolous do not justify an investigation because the conduct that they allege does not impact on any consideration of fitness to teach. It is open to Investigating Panel Conveners to determine a complaint to be frivolous if it is considered so trifling that this needs to be marked in some way.

3 Factors which may indicate that a complaint is frivolous, malicious or vexatious

There are a number of factors that could contribute to a determination that a complaint is in this category. These factors are that the complaint:-

• adds no new information from a complaint which has already been determined by GTC Scotland

• continually changes, apparently to prolong the engagement with GTC Scotland

• fails to identify clearly the substance or precise issues which require to be addressed,

• complains solely about trivial matters to an extent out of proportion to their significance

• is made by a person who makes excessive contact or unreasonable demands, including abusive

behaviour and threats. This could also be dealt with by GTC Scotland’s Unreasonable Actions policy

• is part of a “tit for tat” complaint

• can be determined to be using the GTC Scotland process to either resolve an issue that is in

dispute in another forum or to give the complainant an advantage in another ongoing process.

Finally, it is the complaint, not the complainant which must be considered – just because someone has made a vexatious complaint in the past; it cannot be assumed that any other complaint will be vexatious

These factors set the bar to determine a complaint to be frivolous, vexatious or malicious quite high. They may be difficult to determine at an early stage and without input from the respondent or other parties. Determination of these complaints may require further input from officers in relation to advising Investigating Panel Conveners about repeat complaints. Complainants may also be given assistance to complete complaint forms where required and, if relevant, the level of assistance which has been provided to complainants will be disclosed to Investigating Panel Conveners. This category of frivolous, vexatious or malicious complaint will not include complaints which indicate that the complainant is angry or dissatisfied (unless another of the categories above apply).

4 The approach of Investigating Panel Conveners

In making a decision that a complaint is frivolous, malicious or vexatious, Investigating Panel Conveners will be expected to make reference to which of the factors above they consider are indicated. If the Investigating Panel Convener wishes to determine a complaint as malicious or vexatious where none of the factors above are known to be present the Investigating Panel Convener must provide sufficient reasoning in relation to why the decision to take no further action has been reached.