Understanding the Legal Challenges around ... - · PDF fileUnderstanding the Legal Challenges around Safer Recruitment and Employment Stephen Oxley, Partner Head of Education

Understanding the Legal Challenges around Safer Recruitment and Employment Stephen Oxley, Partner Head of Education

Overview

1. What is a “regulated activity” in relation to children

2. Pre-employment vetting checks

3. Keeping Children Safe in Education

4. Disqualification under the Childcare Act

5. Allegations of abuse made against staff members

Understanding the Legal Challenges around Safer Recruitment and Employment

March 2015 changes

Statutory Guidance

• Keeping Children Safe in Education 2015 - replaces 2014 v

• Working Together to Safeguard Children - replaces 2013 v


1. Regulated activity – background

• Regulated activity (RA) is defined separately for children and for vulnerable adults

• Individuals who are on the barred list are prohibited from undertaking regulated activity and schools need to ensure that barred individuals are not engaged by them

• The majority of staff members at schools will be engaged in RA


What is RA?

Must fall into one of 4 groups: Specified activity

• a specified type of activity

• work activities at certain

establishments

• certain child-minding activities

• inspecting provision of childcare,

education & social services in

Wales

• teaching, training or instruction

• care or supervision

• providing advice or guidance

• conveying children

• public electronic interactive

communication service

the activity must be carried out

frequently by the same person

and the period condition

satisfied


Teaching, training or instruction

Any form of teaching, training or instruction of children unless it is:

• merely incidental to teaching, training or instruction of persons who are not children

• it is on a regular basis, subject to the day-to-day supervision by another person who is engaging in regulated activity relating to children

• provided in the course of the child’s employment


Frequency and period condition

Frequent “if it is carried out once a week or more, on an ongoing basis”

Period condition is satisfied if:

• the person carrying out the activity does so at any time on more than 3 days in any period of 30 days

• in relation to teaching, training or instruction, care or supervision or advice or guidance: the person carrying out the activity does so at any time between 2am and 6am, and, the activity gives the person the opportunity to have face-to-face contact with children


It is a RA if it is:

1. carried out at a certain

establishment e.g. school

2. carried out by a person engaging in paid /

unpaid work unless it is:

- under an occasional / temporary contract

which does not involve the 5 specified

types of activity

- any form of “teaching, training or

instruction” or “care or supervision” which

is subject to the day-to-day supervision of

another person who is undertaking

regulated activity in relation to children

- any form of unpaid work which is subject

to the day-to-day supervision of another

person who is undertaking regulated

activity relating to children

3. carried out frequently

by the same person or

period condition is

satisfied

4. carried out for, or in

connection with, the

purposes of the estab.

5. gives the person the

opportunity to have

contact with children


Am I engaging in RA?

Examples

responsible on a regular basis in a school for teaching, training,

instructing, caring for or supervising children

supervised volunteer who regularly teaches / looks after children

carry out paid, or unsupervised unpaid, work regularly in a school

where that work provides an opportunity for contact with children

RA?

Yes

No

Yes


What if I get it wrong?

A person commits a criminal offence if each of the following is satisfied:• the person permits an individual to engage in RA from which the

individual is barred• the person knows or has reason to believe that the individual is barred

from that activity• the individual engages in that activity (s9 SVGA)

Sanctions are:• on conviction on indictment, up to 5 years in prison or a fine (or both) • on summary conviction, up to 6 months in prison or a fine not exceeding

the statutory minimum (or both)

NB – also a criminal offence if you fail refer / provide info to the DBS.


2. Pre-employment vetting checks – DBS

• Standard: a check of the Police National Computer (PNC) records of convictions, cautions, reprimands and warnings;

• Enhanced: a check of the PNC records as above, plus other information held by the police that is considered relevant by the police; and

• Enhanced, which will automatically include barred list information: for people working in regulated activity with children. This adds checks of the DBS Children’s Barred List to the enhanced check.


Which check do I need – governors


maintained • enhanced DBS check without barred list

• enhanced DBS check with barred list check if engaging in regulated activity

independent / academy

• chair must ensure enhanced DBS checks are untaken “where relevant” and obtain an enhanced DBS certificate

Which check do I need - teachers


teacher • enhanced DBS check with barred list check

• check they are not prohibited from teaching using the Employer Access Online Service.

moving -schools / LA

• no requirement to obtain an enhanced DBS certificate (with barred list check) if a teacher / support staff transfers from a similar positionwithout a break in service of more than 3 months (subject to certain requirements).

• all other pre-appointment checks must still be completed (e.g. carry out a barred list check if they are in RA). Schools may choose to request an enhanced DBS certificate should they wish to.

Which check do I need - contractors


contractor in RA

• enhanced DBS certificate (with barred list information)

contractor not in RA

• if work provides them with an opportunity for regular contact w/ children, an enhanced DBS check (not including barred list information)

NB – You must ensure any contractor/employee of a contractor has

been subject to the appropriate DBS check. Under no

circumstances should a contractor in respect of whom no checks

have been obtained be allowed to work unsupervised/engage in RA

Which check do I need – new volunteers


• does the activity fall under the definition of RA?

• carried out frequently?

• carried out for the purposes of the school?

• give the opportunity for contact with children?

supervised: no requirement for a DBS check but an enhanced certificate may be obtained (this is not RA). We would advise that a DBS check is carried out.

unsupervised: enhanced DBS check and barred list check (this is RA).

Person is not in

RA but an

enhanced DBS

check may be

obtained.

Yes No

3. Keeping Children Safe in Education

Changes include:

• c34 – child protection / staff behaviour policies should include points on staff / pupil relationship, communications and the use of social media


Safer recruitment – top tips

• Adverts / Job descriptions include your safeguarding statement & refer to DBS requirements

• Application formsensure the applicant’s history is complete and is not contradictory

• Shortlisting- request references directly from the referee - if a teacher not currently employed, it is advisable to check w/ school- decide on the interview structure- decide what you will look for (‘model’ answers)


Top tips continued

• Review references - compare for consistency with information on application form- if reference is vague or there is missing information, contact referee

• Verify - identity and right to work in the work in the UK - mental and physical fitness to carry out work - professional qualifications where appropriate


Top tips continued

• Interviewask safeguarding questions

• Make conditional offer - obtain certificate for an enhanced DBS check with barred list for RA* - if A lived/worked outside UK, make further checks if appropriate- check for prohibition order

*guidance advises schools to obtain a barred list check if A will start work in RA before the certificate is available

• Employment contract


Disqualification under the Childcare Act 2006

• Guidance came out in February 2015

• Applies to maintained, independent, academies & free schools

• Relates to: o staff who work in early years provision; o staff working in later years provision for children who have not

attained the age of 8 including before and after school provision; and

o staff who manage the early years or later years provision


4. Disqualification criteria

• Disqualification criteria is wider than the inclusion on the children’s barred list

• Full list of disqualifying criteria in guidance, but by way of example, you can become automatically disqualified by committing a disqualifying offence or event and/or become “disqualified by association” if you live in the same household where another person who is disqualified from early years provision lives or works

• Guidance requires early years providers to ask for relevant information from early years staff to check neither they nor anyone who lives with them falls within the disqualification criteria


Disqualification by association

• For “disqualification by association” the staff member must provide, to the best of their knowledge, information about someone who lives or is employed in their household.

• You should:o update staff on the disqualification ruleso amend safeguarding and recruitment policy and include a provision

requiring staff members to advise the school where the information has changed

o include a provision in new contracts o ask new starters about disqualification before a job offer is made o consider the use of declaration formso review annually to check if information has changed


5. Allegations of abuse against teachers / staff

• ‘Allegations of abuse made against teachers and other staff’ is at Part four of Keeping Children Safe in Education

• Guidance applies when it is alleged a teacher, member of staff or volunteer has:

o behaved in a way that has harmed a child, or may have harmed a child

o possibly committed a criminal offence against or related to a child

o behaved towards a child / children in a way that indicates s/he would pose a risk of harm to children


Approach to dealing with allegations

• Inform the LADO – discuss/consider the nature, content and context of the allegation, determine whether police involvement is necessary and agree a course of action.

• Inform accused asap after consulting with the LADO – but where a strategy discussion is needed or police / social care are involved, consult with agencies first!

• Strategy discussion – this should be convened if there is cause to suspect the child is suffering or is likely to suffer significant harm.

• Investigation – the LADO will discuss with the case manager how and who will carry out the investigation.


Outcomes

• Substantiated: there is sufficient identifiable evidence to prove the allegation

• Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive

• False: there is sufficient evidence to disprove the allegation

• Unsubstantiated: there is insufficient evidence to either prove or disprove the allegation. The term does not imply guilt or innocence.

*New* - guidance states in footnotes that schools can use the additional definition of “unfounded”


What about…

• Suspension?

• Supporting those involved?

• Reporting?

• Entering into a settlement agreement?

• References?

• Referrals?


Checklist

Carry out a risk assessment to ascertain whether an individual is in RA and what type of check is advisable;

Review recruitment process and contracts of employment;

Review updated guidance;

Carry out regular and effective child protection training;

Ensure that you have a policy dealing with allegations against staff; and

Encourage a culture whereby staff are comfortable enough to come and talk to you.


Contact

Stephen Oxley

Partner and Head of Schools

Wilsons Solicitors LLP

Tel: 01722 427 743

Email: [email protected]


mailto:[email protected]

Understanding the Legal Challenges around ... - · PDF fileUnderstanding the Legal Challenges around Safer Recruitment and Employment Stephen Oxley, Partner Head of Education

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