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FAQs - disqualification of school staff

9 March 2015

On 27 February 2015 the DfE introduced new guidance regarding the disqualification of school staff under the Childcare Act 2006.

These FAQ’s tell you all you need to know and explains what steps to take next.

Does the new guidance apply to my school?

If you have an early years setting (reception and year one) in your school then it will apply to you. So primary schools and all through schools are covered.

Also, if you provide before or after school clubs at your school and they are attended by children under eight years of age, then the requirements of the guidance apply to staff at those clubs. This is how some secondary schools are caught.

What are the key changes compared to the DfE October Advice?

The October Advice lacked detail and clarity. The key changes are:

Staff covered: Certain staff – such as caretakers, cleaners and escorts - are specifically excluded from the requirements. Importantly, later years staff are no longer covered if they are not involved in the Early Years setting. Volunteers are caught if they volunteer ‘on a regular basis’ or are involved in the management of the provision.

The duty on the school: Whilst the duty remains the same, the steps required to discharge it have been softened. Asking staff to complete a declaration form is no longer the preferred option; instead schools are now expected to ensure that staff are ‘made aware of the legislation’ through policy amendment, additional contract terms for new staff and a staff briefing explaining what is required.

The Rehabilitation of Offenders Act: Unlikely to be an issue for school staff but complicates matters considerably when considering convictions of those caught ‘by association’. The guidance now makes it clear that schools can only consider unspent convictions of those ‘in the same household’ as the staff member and must not consider protected convictions.

This is a complex area where you will need legal or HR support. If you use our HR service, Quickcall or subscribe to our disqualification helpline, this support comes for free.

Redeployment: Given that, as a basic rule, later years staff will not be caught, the guidance makes it clear that redeployment of staff into these settings is an option whilst the outcome of a waiver application is awaited. If redeployment is not an option for you, then working from home, suspension or paid leave are the alternatives.

So exactly which staff does it apply to?

In primary schools it applies to all staff who are employed in and/or provide early years childcare. The guidance now explains that staff not employed directly to provide childcare are not covered by this requirement. This will include caretakers, cleaners, drivers, transport escorts, catering staff and office staff.

Importantly, those staff “only occasionally deployed and are not regularly required to work in a relevant setting” will not automatically be covered. In other schools, staff involved in before or after school clubs attended by children under eight years of age are covered.

Volunteers are covered by this guidance if they volunteer ‘on a regular basis’ or are involved in the management of the provision. ‘Regular’ is not defined, but it is prudent to use the definition of ‘frequently’ set out in Keeping Children Safe in Education 2014 – at least once a work or on more than three days in a 30 day period.

Has anything changed regarding ‘by association’?

There is no greater clarity on who is caught and so we must continue to work on the basis that it has a wide definition and anyone living in the same household – parents, children, siblings, lodgers, flatmates, for example – are all caught.

Where we do have greater clarity is around what staff are expected to do to provide information to schools about those with whom they live.

The guidance now states that all staff need to do is tell schools ‘to the best of their knowledge’ whether those they live with have convictions. This makes it clear that there is no requirement for staff to go home and ask questions, they simply rely on the information they hold at the time the question is asked.

As explained above, where this issue has become more complex is around the Rehabilitation of Offenders Act, which limits the offences schools are allowed to consider. If your staff believe that they may be disqualified as a result of a ‘by association’ conviction, speak to us so we can confirm the position for you.

Do I need to get staff to sign a declaration form?

The DfE has softened its stance on the lengths schools need to go to confirm staff are not disqualified. Declaration forms are no longer preferred and instead all the guidance requires of schools is to ensure that staff are ‘made aware of the legislation’. It suggests doing this by amending policy and by adding an additional clause to employment contracts for new starters. This is a sensible approach.

The guidance provides no advice on how to bring the legislation to the attention of staff. We advise holding a simple staff briefing for the staff covered by this requirement and explaining the position and what you need from them. Having done so, ask them to sign an attendance sheet so you can evidence that staff have been told.

What should the staff briefing contain?

As with all briefings, the best approach is to keep it clear and simple. In your briefing you should explain that:

  • you are required to get them to confirm they are not disqualified;
  • what disqualification means and how staff become disqualified (both in relation to the staff member and those caught ‘by association);
  • the ‘best of your knowledge’ test; and
  • if they have concerns, they should come to you to discuss them confidentially.

For those of you who use our HR service or Quickcall or subscribe to our disqualification helpline, we can provide you with an outline of a script.

What if someone is disqualified?

There are three steps to take:

  1. Notify Ofsted within 14 days
  2. Tell your staff member you have notified Ofsted and that they should now apply for a waiver
  3. Consider whether redeployment, working from home, paid leave or suspension is the best option in the particular circumstances

Is redeployment the best option?

Generally speaking, yes. It means the staff member remains in school, you do not need to incur the costs of cover and the rumour mill won’t start. However, you need to make sure you are redeploying them outside of the early years setting and that the role will not include anything other than the occasional deployment into early years (if at all).

It is also worth carrying out a brief risk assessment to evidence that you have addressed the issues and taken appropriate steps to ensure the staff member does not engage in early years childcare.

As you would expect, we can support you with making the decision and considering the appropriate risks. Simply call our Disqualification Helpline or get in touch with your HR Consultant or Quickcall CRM as usual.

What about staff already suspended?

As with any suspension you should regularly review the reasons for the suspension and consider whether they still apply. If you have suspended staff based on the approach required under the October 2014 DfE Advice, it may well be that the suspension can end. We can advise you on the issues immediately.

What do I need to do now?

Understand the new position and apply it to your staff. Consider a minor amendment to your safeguarding policy to reflect these requirements and consider whether you want to amend new starter contracts. For the staff briefing, ensure you cover the key points and address them only to staff caught by the requirements – a special briefing for those staff may well be appropriate.

Finally, for staff that are currently suspended, review the reasons for the suspension and decide whether they can return to work.

Where can I get support?

Through the Browne Jacobson Quickcall, HR services or our new Disqualification Helpline, we are able to support you every step of the way. Call us as often as you need to ensure you have the support you need to navigate your way through this new guidance.

Download a copy of these FAQ's here

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