The Education HR in the North West Conference, January 2018 - Managing allegations against staff

The Education HR in the North West ConferenceJanuary 2018, ManchesterManaging allegations against staff

This session

Part one – Getting the basics right

Part two – Overcoming challenges

Plenty of discussion throughout

Allegations against staff

Part one – Getting the basics right

Part one – getting the basics right

• The guidance

• Understand the key agencies

• Telling the staff member

• Investigation and outcomes

The guidance

Keeping Children Safe inEducation 2016• Applies to staff and volunteers in

schools, academies, FE Collegesand other establishments thatprovide education for under 18s.

When should it be used?

Where it is alleged that a member of staff has:• Behaved in a way that has/may have harmed a child• Possibly committed a criminal offence against or related to a

child• Behaved in a way that indicates that s/he would pose a risk

of harm if worked regularly or closely with children

What if this threshold is not met?

The key agencies

In most investigations, there are three key agencies:• The Designated Officer(s) at the LA• The police• You

Each has their own very different focus.

Designated Officer(s)

They calls the shots!• What is their focus?• How well do you know your Designated Officer?

– Do you have a working relationship with them?– Do they know you, your school and your approach to

safeguarding pupils?– Do you have contact details for at least one of them?

The police

• What is their focus?• Do you have a school liaison officer?

– Do you have a working relationship with them?

You (the school)

• What is your focus?– The child?– The staff member?– Your wider staff?– Reaching an outcome?– Parents and pupils?

• How easy is it to manage these competing interests?• Who makes the referral?

Telling the staff member

• Should be done as soon as possible– Consultation with Designated Officer (and police if

involved)

• Who should do it?– School in most circumstances

• What do you say and how do you do it?– What records do you keep?– Do you follow up with a letter?

What about suspension?

• Should only be done where there is a risk of significant harm• If you do suspend:

– Give reasons and provide a named contact at the school– Record your reasons and regularly review them– Seek advice and support from your legal and/or HR

service• Can the police/Designated Officer require you to suspend?

Sli.do – vote now

Can the police require you to suspend?No, neverYes, alwaysSometimes…

Supporting the staff member

• You have a duty of care to your employees• Seek to minimise the impact on the employee who is subject

to an allegation• Inform them of the concerns (as agreed) and explain likely

course of action• Advise employee to seek support from professional advisers

or colleague for support• Access to counselling or OHU• Appoint a named person as main contact point for support

Investigation and outcomes

• Investigation almost always required• Who carries it out in your school?• Must reach one of the four outcomes:

– Unsubstantiated– Substantiated– False– Malicious

Settlement agreements

Para 167:• If the accused person resigns or their services cease to be

used and the criteria are met, it will not be appropriate toreach a settlement/compromise agreement.

• A settlement/compromise agreement which prevents theschool or college from making a DBS referral when thecriteria are met would likely result in a criminal offencebeing committed as the school or college would not becomplying with its legal duty to make the referral.

Sli.do – vote now

Would you use settlement agreements where an allegationhas been made?YesNo

Allegations against staff

Part two – Overcoming challenges

Part two – overcoming challenges

• Working with the police

• Driving the strategy discussion

• Referring to the DBS and/or NCTL

• The press, parents, pupils and staff

Working with the police

• Do you have a school liaison police officer (SLP)? If so, howwell do you know them?

• When working with the police on an allegation, how do youmanage:– a lack of engagement?– a slow investigation?– a lack of information sharing?

Working with the police – case study

An allegation is made directly to the police (not to the schoolat all) that a staff member is involved with drugs. The schoolhas no more information.

The staff member denies all allegations and refuses to engagewith the school. The police are taking no action.

What information do you need from the police and how canyou get it?

Working with the police – case study

A pupil alleges they have been in a sexual relationship with amember of staff. The police investigate and ask you not tocarry out your own investigation until they are done. Yoususpend your member of staff.

Four months pass and the police have not concluded theirinvestigation. Your member of staff is still suspended.

How can we influence the police to conclude theirinvestigation or persuade them to allow you to carry outyour own?

What are our options?

• Dismiss• Bail conditions• Negotiate• Dismiss for another reason

Driving the strategy discussion

• Convened if suspect significant harm suffered/likely• School will be invited and should attend• Where police not involved, Designated Officer will lead and

discuss next steps with you

Driving the strategy discussion

• Where the police are involved, Designated Officer will leadand liaise with you

• What should you expect at a strategy discussion?• Should your HR advisor attend?

The press, parents, pupils and staff

• Managing an allegation is tough enough. To increase thepressure you may also have to contend with:– The local/national press wanting comment– Parents/staff/pupils gossiping about the allegation– Allegation discussed on social media

• How do you deal with it?

The press, parents, pupils and staff – case study

Naked pictures of a staff member have been posted online by apupil who left the school in July 2015. The former pupil allegeshe had an affair with that staff member.

Many of your staff, your pupils and their parents have seen thepictures. Parents have started a Facebook page calling for theHead to resign and for the staff member to be dismissed.

The staff member denies any wrongdoing but resigns withimmediate effect. The next day local paper calls asking forcomment.

The press, parents, pupils and staff – case study

• Still required to follow the guidance• Consistency is the key – deliver the same core message to

staff, parents, pupils and the press• How can you manage the press?• What support do you need and who from?

Referrals to the DBS and/or NCTL

• When should you refer?

DBS

Referral must be made when both of the followingconditions are met:

i) The RAP withdraws permission for an individual toengage in regulated activity or would have done so hadthat individual not resigned, retired, been maderedundant or transferred out of regulated activitybecause…

DBS

ii) They think that the individual has:

been cautioned or convicted of a relevant offence engaged in ‘relevant conduct’; or satisfied the ‘Harm Test’

Both i) and ii) need to be satisfied for the duty to be triggered

DBS - What if the duty isn’t triggered?

• You can make a referral where the duty is not triggered butyou believe there are concerns but you do not have theevidence to dismiss.

• DBS required by law to consider the referral.

NCTL

Responsible for investigating allegations of serious misconductagainst teachers and headteachers in schools in England.

Does not apply if the allegation:• relates to professional incompetence• if the person is not a teacher

A referral is appropriate if the alleged misconduct is so seriousthat it warrants a decision on whether the teacher should beprevented from teaching.

NCTL

• Statutory duty for employers to refer to NCTL if threshold ismet.

• Consider where teacher is dismissed or would have beendismissed if they had not resigned.

• A prohibition order means that the person is not allowed toundertake unsupervised teaching work in schools .

• This guidance sets out types of offences/matters that couldlead to prohibition.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/495028/Teacher_Misconduct_The_Prohibition_of_Teachers_advice_updated_26_Jan_2016.pdf

www.brownejacobson.com/education

Dai Durbridge | 0161 300 8037 | [email protected]

Eleanor Drabble| +44 (0)330 045 2108 | [email protected]

Please note

The information contained in these notes is based on the position at January2018. It does, of course, only represent a summary of the subject matter coveredand is not intended to be a substitute for detailed advice. If you would like todiscuss any of the matters covered in further detail, our team would be happy todo so.

© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liabilitypartnership.