Part 1 of the series considers issues surrounding recruitment, taking into account the recent changes to the government’s statutory guidance, while Part 2 will look at issues which may arise during the employment relationship.
Ok then, what steps need to be taken during recruitment in relation to safeguarding?
While DBS checks are an essential part of the recruitment process, they do not replace the need for employers to have robust additional measures in place to check the suitability of candidates, such as taking up references and holding interviews. DBS is only part of the picture.
Part 3 of the Government’s 2018 statutory guidance “Keeping Children Safe in Education” (“KCSIE”) sets out requirements and best practice in the recruitment sphere. Some of its content is simply common sense and in line with statutory requirements (such as the need to verify identities, checking the right to work in the UK, verify professional qualifications and conduct DBS checks).
Ultimately, KCSIE requires governing bodies and proprietors to act reasonably in making decisions about the suitability of candidates based on checks and evidence.
However, some of the KCSIE guidance goes further than standard practice, for example the suggestion that references should be taken up for all short-listed candidates at the interview stage. Given that most applicants would be reluctant to have their referees contacted before they are actually offered the job, it is likely that many education establishments will chose to ignore this requirement and merely take up references from the successful candidate. This seems a pragmatic approach to take, but as KCSIE is statutory guidance we will have to wait and see whether it causes any difficulties for these organisations in the future.
Should everybody have an enhanced DBS check then?
Clearly, in some cases it is easy to see that an enhanced DBS check is required. Teachers, teaching support staff and counsellors would all require the highest level of check, both from a legal standpoint, and a common sense one. But what about those people who work/volunteer in colleges, but do not have much/any direct contact with children or vulnerable adults?
There is a legal requirement to carry out an enhanced DBS check (which involves a check of the barred list) for anybody carrying out “regulated activity”. As well as the usual subjects (teachers, carers etc), the legislation states that an activity is a regulated activity relating to children if:
- it is carried out frequently by the same person or at any time on more than three days in any period of 30 days;
- it is carried out in certain places, including “an educational institution which is exclusively or mainly for the provision of full-time education to children” and schools;
- it is carried out by a person while engaging in paid work, other than temporary or occasional work, or
- it is carried out by a person while engaging in unsupervised voluntary work, other than temporary or occasional work,
- it is carried out for or in connection with the purposes of the establishment; and
- it gives that person the opportunity, in consequence of anything he is permitted or required to do in connection with the activity, to have contact with children.
Arguably, this means that anybody who is in a job role at least 3 days out of 30 at an education establishment, and could come into contact with children as part of their job, will be subject to an enhanced DBS check. This could include staff in the finance or HR department who might encounter children in a canteen or toilets.
There is no definition in the legislation as to what constitutes “contact with children”. While conventional wisdom might suggest that an occasional accidental encounter would not be sufficient, we are aware that OFSTED will usually take the view that, like in schools, everybody working in an FE college should be subject to an enhanced check. This is because, by virtue of working in the college, they may have access to information about children (which could assist a predatory individual to assess which children may be vulnerable and susceptible to grooming). In addition, as they will be associated with the trusted college environment, they could be seen as a “safe person” if encountered by students outside of work.
There is no longer a legal requirement to run DBS checks for the governing body, but many colleges still take the decision to do so.
It is worth noting that if a person is engaging in temporary or occasional work and he/she is carrying out a type of specified activity such as teaching or childcare, they would still be carrying out a regulated activity. This means that, unsurprisingly, supply teachers are deemed to be undertaking regulated activity despite being engaged on a temporary basis.
So what if the DBS or other checks come back with concerning information?
Employers cannot necessarily withdraw an offer of employment, or dismiss an existing employee, just because the DBS result discloses worrying information. The same is true where there are allegations made during employment, or other information comes to light which leads the employer to worry that the employee poses a potential risk. If the individual is undertaking a regulated activity and the check reveals that they are on the barred list then the position is fairly straight forward as it is a criminal offence to employ them. However, other information which might be revealed may not be so clear cut.
Helpfully, in Leach v The Office of Communications  EWCA Civ 959 the Court of Appeal did hold that OFCOM had fairly dismissed Mr Leach for “some other substantial reason” where there had been an official police disclosure alleging that he had sexually abused children and stating that the police believed he still posed a threat to children. Even though Mr Leach’s job did not involve working with children, the fact that there was potential serious damage to the OFCOM’s reputation as a responsible organisation was enough to allow them to dismiss fairly. Arguably, if Mr Leach had been working with children, the fair reason for dismissal would have been even easier to make out.
However, we still need to tread carefully. In Z v A UKEAT/0203/13; A v Z UKEAT/0380/13 the EAT considered a dismissal of a primary school caretaker and site manager. The caretaker was dismissed following the discovery of an allegation that he had, in the past, sexually abused a child. No charges had been brought and the police declined to comment on whether they believed that there was a continuing threat to children. The EAT held that the dismissal was unfair as the employer had not carried out its own enquiries to test the information, and had not followed a fair procedure.
This case demonstrates the danger of relying blindly on a DBS check or any information received from a third party. The Court of Appeal in Leach commented that before taking action based on information received from any third party, employers should:
- Try to assess the reliability of the information;
- Look into the integrity of the informant body and ask questions about the safeguards within its internal processes concerning the accuracy of the information supplied;
- Consider whether there was evidence of a pressing need for disclosure to the employer and the likely effect of disclosure.
It is also necessary to critically analyse the information and ensure that the action taken is reasonable and justified in the circumstances. Finally, if action is taken, make sure that a full and fair disciplinary procedure is followed in the normal way.
That’s it from us for now, Part 2 will follow soon, keep your eyes peeled!