House of Commons - Allegations Against School Staff - Children, Schools and Families Committee

Allegations Against School Staff - Children, Schools and Families Committee Contents

3 The investigatory process

23. There is no single, standard investigatory process. Different types of allegation will be handled by different bodies. If there is a suspicion that a criminal act may have been committed, the case is likely to be referred to the police and/or to local authority social services in the first instance. Once these investigations have concluded (whether or not they lead to criminal proceedings), or in cases not referred to either the police or local authority social services, an internal disciplinary investigation may be held. Once that has concluded, disciplinary action may be taken, which may in turn lead to referral to the Independent Safeguarding Authority, to assess whether the member of staff should be placed on a list of persons barred from working with children, and/or to the General Teaching Council for England, to assess whether a teacher should continue to be registered with the Council.[38] A summary diagram of the various courses which the process for handling allegations might follow appears in draft guidance for practitioners issued by the Department in May 2009 for consultation, and it is reproduced overleaf.[39]

Procedures for handling allegations made against school staff

Source: Handling allegations of abuse made against adults who work with children and young people, DCSF draft guidance, May 2009

24. A recurring theme in evidence was the strain placed on those subject to allegations by the protracted nature of the various investigatory processes. Some members of the Committee have first-hand knowledge of cases in which separate bodies ran consecutive investigations into a single allegation, causing proceedings to be drawn out over many months. In one example, a police investigation was held first and found no case to answer; this was followed by an investigation by local authority social services, which found no case to answer; this was followed by an internal disciplinary investigation.[40] A witness representing the National Association of Head Teachers recounted a similar example.[41] One person who sent a written submission had been investigated by the General Teaching Council for England two years after the allegations had been made.[42] As the National Governors' Association pointed out, "lengthy investigations are not just traumatic for the staff involved: they also cause operational and financial difficulties for the school and can impact on pupils".[43]

25. Police officers may not be able to treat investigation of an allegation against a member of school staff as a priority, with consequences for all those involved. We note the observation by Sir Roger Singleton, in his Review of Safeguarding Arrangements in Independent Schools, Non-Maintained Special Schools and Boarding Schools in England, that:

In a typical case, the local police may require all action by the school to cease while they decide if a prosecution is warranted, leaving the school with minimal information with which to manage the concerns of pupils, parents and staff, including staff who may be suspended from duty. The school may then find the matter referred back to them some time later, when the police have decided this is not a case for prosecution. But in the meantime, the school has had to cope with the anxiety of pupils, parents and staff about how the case will proceed; may have incurred substantial costs associated with lengthy suspensions; and is now faced with the task of investigating the matter properly themselves, made more difficult as the trail is cold.[44]

26. We asked witnesses whether it would be possible to combine investigations. FACT pointed out that police, local authorities and schools each operated within a different statutory framework and were accountable to different bodies.[45] Nonetheless, we question whether there is a need for a lengthy investigation of an allegation by local authority social services if a police investigation has concluded that no crime has been committed or that there is no case to answer.

27. There may be scope for sharing evidence. The General Teaching Council for England, which will have a role in investigating allegations in cases which have led to the dismissal of a teacher for misconduct, incompetence or criminal offending, said that "if there is some coherence across the collection and use of evidence in the early stages, that means that when we come to our investigation [into] whether or not the teacher should remain registered, we can use that evidence that has already been collected for previous purposes".[46] Mr Gargan, Assistant Chief Constable at Thames Valley Police, told us that "we encourage our officers to obtain evidence in a way that can be shared and used for a dual purpose, such as professional hearings".[47] If observed, this would clearly be good practice. We recommend that representatives of the Association of Chief Police Officers, local authorities and teacher unions meet to agree a protocol for the recording and sharing of information.

28. The remainder of this Report examines the various stages of investigation and the particular issues which arise.

The first stages of investigation

29. Allegations are most commonly reported to a member of school staff, sometimes directly to the head teacher. The head teacher then faces a crucial decision on whether the allegation is serious enough to engage either the police or local authority social services. It was made clear to us that the initial phases in handling an allegation were critical for all those involved.[48]

30. The NASUWT told us that "headteachers are generally now less inclined and lack the confidence to deal even with low-level allegations internally, instead referring all cases to the local authority", with the result that minor restraint incidents are treated in the same way as are serious allegations of sexual abuse.[49] The Association of School and College Leaders also argued that the "general injunction" to hand matters to the local authority or to the police could lead to over-reaction.[50] The NUT told us that it was concerned that head teachers were not allowed to exercise more professional judgment at this stage, implying that head teachers were feeling obliged to refer to local authorities alleged acts which they were confident could not have taken place.[51] Clare Collins, Chair of the National Governors' Association, noted that there were sometimes allegations which simply had no credibility and in which claims were made that a teacher had acted in a particular way when in fact the teacher had not even been in the school at the time.[52]

31. DCSF guidance encourages referral to local authorities, saying that "it is important to ensure that even allegations that appear less serious … are examined objectively by someone independent of the school or college" and that the local authority designated officer should be informed of all cases which "appear to meet" specified criteria, namely that a member of staff has:

Behaved in a way that has harmed a child or may have harmed a child;
Possibly committed a criminal offence against or related to a child; or
Behaved towards a child in a way that indicates that he/she is unsuitable to work with children.[53]

Because of the way in which guidance is set out, and because it is based upon cross-referencing between different paragraphs, there is some ambiguity about whether the requirement to inform the local authority designated officer is triggered by an appearance that the criteria have been met, which implies scope for an assessment by the head teacher, or whether the requirement is triggered by an allegation of events which meet the criteria. We suspect that almost all allegations would meet this threshold, and in few cases would it not at least appear that a child might have been harmed; so it is no wonder that headteachers feel obliged to refer a case to the local authority.

32. We believe that headteachers should have more discretion to intervene early in cases and to handle allegations internally if they are satisfied that there is no prospect of harm being caused to the child. We recommend that the Department amend guidance to those working with children to identify circumstances in which headteachers can justifiably handle allegations internally. We are not convinced, however, that the same discretion should apply to governors considering an allegation against a headteacher.

The role of the local authority

33. DCSF guidance makes no statement explicitly about the overall role of the local authority in handling allegations against members of school staff. The Department does elaborate on the role of local authority designated officers (LADOs), which it says should "have overall responsibility for oversight of the procedures for dealing with allegations" and "should be involved in the management and oversight of individual cases".[54] It adds that the LADO should also:

provide advice and guidance to employers and voluntary organisations;
liaise with the police; and
monitor the progress of all cases to ensure that they are dealt with as quickly and consistently as possible through the use of a fair and thorough process.[55]

34. The General Teaching Council for England said that "our expectation is that the great majority of complaints raised against teachers will be successfully addressed at school level" and that "we understand that the [local authority] role is confined to reviewing the adequacy of the procedures followed in considering the complaint rather than the substance of the matters at issue".[56] Yet some written submissions suggested that local authorities became heavily involved in the investigations themselves;[57] and a witness appearing on behalf of the Association of School and College Leaders spoke of "variation across authorities", with some authorities "going after" school staff if an allegation is made, whereas others looked at the balance between the allegation and the member of staff's needs and made a measured judgment.[58]

35. We were also given examples of what appeared to be oppressive behaviour by local authorities: the NUT recorded cases of headteachers coming under considerable pressure from local authority social services to suspend staff, with one authority allegedly threatening to remove the governing body if it did not comply with the authority's wishes.[59] A submission from a headteacher cited "intense pressure from the local authority for me to resign", apparently before the outcome of any investigation.[60]

36. In other cases, the local authority appeared to have taken on a controlling role which brought into question the impartiality of the investigation. A headteacher described his appearance before a disciplinary panel on a charge of gross misconduct: as the governing body was implicated in his defence, the local authority selected a team of governors from other schools to deal with the case, advised the disciplinary panel, presented the case against the teacher, and questioned witnesses. He added that the panel members were obliged to accept the advice of the local authority representative or risk being held individually liable for any future claim.[61] A chair of governors described an investigation as proceeding with the local authority as "investigator, prosecutor, judge, clerk and jury".[62] We did not receive enough evidence to make a judgement on whether or not these were merely isolated instances.

The role of Local Safeguarding Children Boards

37. The Department told us that Local Safeguarding Children Boards (LSCBs) had no role in investigating individual allegations but that they were "the key statutory mechanism for agreeing how the relevant organisations in each local area will co-operate to safeguard and promote the welfare of children in that locality, and for ensuring the effectiveness of what they do".[63]

Police use of powers of arrest

38. The issue which most exercised witnesses about police investigations was police officers' use of their power to arrest. Placing a person under arrest entitles police officers to keep him or her in custody (probably in a police cell) for up to 24 hours initially, and to take photographs, fingerprints and a DNA sample. The Association of School and College Leaders said that "there should be no need to arrest a member of staff who is willing to co-operate with the police, yet arrests are made even of people who have presented themselves at a police station to make a statement".[64] The NUT made a similar point. [65]

39. Mr Paul Kaufman, a member of a panel of solicitors instructed by the NUT to assist with teachers who are being investigated by the police in relation to alleged criminal offences, drew our attention to the criteria for arrest set out in Code G under the Police and Criminal Evidence Act 1984, under which an officer "must have reasonable grounds to believe that the person's arrest is necessary". The various criteria prescribed by the Code for measuring necessity are set out overleaf.

(i)  POLICE AND CRIMINAL EVIDENCE ACT 1984

(ii)

(iii)  EXTRACT FROM CODE G: CODE OF PRACTICE FOR THE STATUTORY POWER OF ARREST BY POLICE OFFICERS
(iv)
(v)  The criteria are that the arrest is necessary:
(vi)
(vii)  (a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name)
(viii)
(ix)  (b) correspondingly as regards the person's address. An address is a satisfactory address for service of summons if the person will be at it for a sufficiently long period for it to be possible to serve him or her with a summons; or, that some other person at that address specified by the person will accept service of the summons on their behalf.
(x)
(xi)  (c) to prevent the person in question -
(xii)  (i) causing physical injury to himself or any other person;
(xiii)  (ii) suffering physical injury ;
(xiv)  (iii) causing loss or damage to property;
(xv)  (iv) committing an offence against public decency (only applies where members of the public going about their normal business cannot reasonably be expected to avoid the person in question); or
(xvi)  (v) causing an unlawful obstruction of the highway;
(xvii)
(xviii)  (d) to protect a child or other vulnerable person from the person in question
(xix)
(xx)  (e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question.
(xxi)  This may include cases such as:
(xxii)  (i) Where there are reasonable grounds to believe that the person:
(xxiii)   has made false statements;
(xxiv)   has made statements which cannot be readily verified;
(xxv)   has presented false evidence;
(xxvi)   may steal or destroy evidence;
(xxvii)   may make contact with co-suspects or conspirators;
(xxviii)   may intimidate or threaten or make contact with witnesses;
(xxix)   where it is necessary to obtain evidence by questioning; or
(xxx)  (ii) when considering arrest in connection with an indictable offence, there is a need to:
(xxxi)   enter and search any premises occupied or controlled by a person
(xxxii)   search the person
(xxxiii)   prevent contact with others
(xxxiv)   take fingerprints, footwear impressions, samples or photographs of the suspect
(xxxv)  (iii) ensuring compliance with statutory drug testing requirements.
(xxxvi)
(xxxvii)  (f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question. This may arise if there are reasonable grounds for believing that
(xxxviii)   if the person is not arrested he or she will fail to attend court
(xxxix)   street bail after arrest would be insufficient to deter the suspect from trying to evade prosecution.

Source: Code G, Codes of Practice under the Police and Criminal Evidence Act 1984, paragraph 2.9

40. In his analysis of the criteria, Mr Kaufman argued that:

the details covered by criteria (a) and (b) would invariably be easy to ascertain;
suspension by the school would normally suffice in relation to criteria (c) and (d); and
criterion (e) would rarely apply, as the great majority of interviews of teachers under investigation by the police did not take place until at least several days, or more usually several weeks, after an initial complaint had been made. In fact, Mr Kaufman noted, the common complaint of teachers was that investigations take too long.[66]

We would expect an arrest under criterion (f) to be justified only in very rare cases.

41. Mr Kaufman accepted that there were very occasionally extremely serious allegations made against teachers where there was a genuine risk of a teacher disposing of evidence or otherwise interfering with the course of the investigation (for example by talking to witnesses): in such cases, it was imperative for a prompt and effective investigation that the police arrested the suspect. However, he also believed that there were teachers who were arrested simply because the police took the view that the allegation was serious and/or that the evidence of an offence being committed was credible. In neither instance was arrest justified under Code G, and he concluded that, in the great majority of cases, the arrest of teachers was unnecessary. He also suggested that police officers sometimes "simply don't appreciate the impact of arresting someone" and that they failed to differentiate between teachers and other types of suspect for whom arrest might be routine; and he pointed out that teachers were particularly vulnerable because they occasionally undertook what was in effect a policing role in schools, intervening to prevent violence.[67]

42. The NASUWT cited examples of cases in which the lawfulness of the arrest of a teacher in relation to an allegation of improper conduct had been challenged and in which the police had conceded, before the challenge had reached the court, that the arrest had been unlawful.[68]

43. We invited Mr Nick Gargan, Assistant Chief Constable at Thames Valley Police, to respond to claims that police officers were making unnecessary arrests of school staff. He said that:

Knowing where people are gives us a degree of control to deal with issues that arise during their interview, evidence that they present, evidence we might seek to obtain, and other people that we might want to talk to. Arrest is an effective administrative mechanism for keeping hold of people and having them where we want them.[69]

We note that the guidance on arrest strategies in child protection cases, as set out by the National Centre for Policing Excellence and displayed by Mr Gargan in evidence, says that action should be "proportionate to the need to protect children and to safeguard the rights of the suspect, particularly with regard to their home, work and family life".[70] Mr Gargan also provided us with an account of the guidance given to recruits on the impact of arrest and the significance of depriving someone of their liberty.[71]

44. Mr Gargan told us that arrests of teachers represented only 0.2% of arrests in the Thames Valley policing area, and that most of those arrests related to actions off-duty and away from school. He did not accept that there was evidence of excessive numbers of arrests being made and he maintained that officers would, if anything, be more reluctant to arrest a teacher, doctor or fellow police officer, and that officers "already think especially carefully about arresting a teacher".[72] However, he appeared to acknowledge that there were some wayward decisions, saying that "I think that the way to deal with these odd cases that one hears about from time to time, where the power has allegedly been used carelessly or inappropriately, should be through the police conduct regulations, not through changing the rules about arresting teachers".[73]

45. We do not doubt Mr Gargan's evidence, that efforts are made to instil an understanding of the guidance on when to make an arrest. However, we are satisfied, from the evidence presented to us, that some arrests of teachers facing allegations have been inappropriate. Indeed, we believe that it would be very rare for circumstances to justify an arrest. We recommend that the Government should undertake a one-off exercise to find out how many arrests were made over a twelve-month period of school staff following an allegation of improper conduct. Police forces should review those cases to assess whether arrest had been justified. We remind chief constables that it is their responsibility to ensure that officers use their power of arrest sensitively and judiciously.

Suspension of staff

46. A second crucial question to be faced by a headteacher at the outset is whether or not to suspend a staff member who has had an allegation made against them. Suspension generally entails enforced absence from the school while on full pay.

47. A number of submissions argued that while suspension is seen as a neutral act in law it is not neutral in practice, as a sudden or prolonged absence of a teacher fuels gossip and taints the teacher's reputation to the extent that some find it difficult to return to work even if cleared of all allegations. The NASUWT said that "the longer the suspension, the greater the effect it has on health, well-being, family life and potential to return to their career, whatever the outcome of the investigation".[74]

When suspension is appropriate

48. Guidance issued by the Department says that "suspension should be considered in any case where there is cause to suspect that a child is at risk of significant harm, or the allegation warrants investigation by the police, or is so serious that it might be grounds for dismissal. However, a person must not be suspended automatically or without careful thought"; and schools are encouraged to consider alternative arrangements.[75] Supplementary guidance issued by the Department in May 2009 for consultation points out that a decision to suspend without careful thought can impede a police investigation, by causing an employee to destroy evidence.[76]

49. In its written submission to our inquiry, the Department stated that "suspension should not be for longer than is strictly necessary". This is in line with ACAS guidance that suspension should be for as short a period as possible.[77] No such statement appears, however, in the draft guidance for practitioners issued by the Department in May 2009, either in the body of the guidance or in the Annex dealing specifically with suspension. The lack of any statement in the Department's draft guidance for practitioners on keeping the length of suspension to a minimum is an omission which should be rectified.

50. Although some witnesses seemed content that schools and employers had a good understanding of when suspension is appropriate,[78] others said that employers resorted to suspension "far too frequently" or did not take the guidance into account.[79] The National Governors' Association cited anecdotal evidence that "suspension is often an automatic reaction".[80] Fiona Hammans, a headteacher giving oral evidence on behalf of the Association of School and College Leaders, acknowledged that "When you have the press banging on the door and the phones going, you think, "Right—suspend. It's dead easy, and looks like we've made a robust response"".[81]

51. Both FACT (Falsely Accused Carers and Teachers) and Professor Pat Sikes[82] suggested that the understanding that suspension was a neutral act had come into question following a judgment of Lord Justice Sedley in 2007, in which he said that "suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence … it is not a neutral act".[83]

52. The NUT told us that teachers were rarely interviewed by the head teacher to assess whether suspension was appropriate, and that alternatives to suspension were little used.[84] On the first point, we were told by one witness that an employer considering suspension was required by law to discuss it with the employee's union representative and come to an agreed set of actions.[85] We have not sought to establish whether this is in fact the case; but nonetheless we believe that it would be best practice for a headteacher to discuss suspension with the accused before any decision is taken, while clearly reserving the right to suspend.

53. On the second point raised by the NUT, over the short term, it may be not too difficult to find alternative forms of work which can be undertaken at home or possibly at the local authority (as was suggested by the Teacher Support Network).[86] In some cases it might even be possible to continue working at the school by making changes to the teacher's timetable.[87] In supplementary guidance for practitioners, issued in May 2009 for consultation, the Department listed further options, such as work not involving contact with children, or arranging for an assistant or colleague to be present when the worker has contact with children.[88] In the long term, however, alternatives to suspension may be difficult to sustain.

54. In our view, the Department's guidance on when suspension is appropriate is sound, but there is some doubt about whether that guidance is being followed consistently. We welcome the steps taken by the Department to reiterate guidance on when suspension of a member of staff is appropriate and on possible alternatives. We recommend that guidance should remind users that the lawfulness of suspension can be challenged and that suspension may be held by the courts not to be a neutral act. We also recommend that each decision to suspend a member of staff subject to an allegation should be reviewed once proceedings have run their course, to assess whether the decision had, in retrospect, been justified. We say more about reviews in paragraph 86.

Support for suspended teachers

55. The NUT told us that guidance that suspended teachers should be provided with counselling, advice, and details of people to contact at the school or local authority was often not followed.[89] The Association of Teachers and Lecturers told us that local authority designated officers (LADOs) did not always keep individuals informed of the progress of developments;[90] and the NUT gave examples of how schools had sometimes failed to keep suspended staff "in the know", for instance by failing to forward school bulletins or notices of internal vacancies, or even payslips.[91] The Teacher Support Network highlighted the importance of emotional support, noting that a suspended teacher has "to work through a complex set of feelings and deal with your local communities, as well as the ramifications of being taken out of the school environment".[92]

56. Several submissions pointed out that suspended teachers were often barred from any contact with children or colleagues at the school.[93] We were shocked to discover that the Department's supplementary guidance, issued in May 2009 for consultation, states that "social contact with colleagues and friends should not be discouraged" but adds "except where it is likely to be prejudicial to the gathering and presentation of evidence".[94] The enforced isolation of someone who may be entirely innocent and who may be disadvantaged by that isolation in gathering evidence to mount a defence in any disciplinary hearing seems inhumane and unjust. While such a restriction might be justifiable on school premises, we doubt that to try to prevent social contact outside the school setting for the benefit of local authority social services and investigators would be enforceable under existing law.[95] Nor would it be practical if members of the family of the accused attended or worked at the school concerned. Guidance to headteachers and to governors should specify that any bar on contact between an accused teacher and other school staff should apply on school premises only.

57. The same draft guidance issued by the Department for practitioners states explicitly that employers "should act to manage and minimise the stress inherent in the allegations and disciplinary process" and that:

Individuals should be informed of concerns or allegations as soon as possible and given an explanation of the likely course of action, unless there is an objection by social care or police;
Individuals should be advised to contact their trade union representative, if they have one, and given access to welfare counselling or medical advice where this is provided by the employer;
Employees need to be kept informed of both the progress of their case and work-related issues.[96]

This is a restatement of principles set out in guidance previously published by the Department.[97]

58. We welcome the stress placed by the Department in its draft guidance for practitioners on making constant and appropriate support available to members of staff subject to allegations. We remind local authorities, employers and school leaders of their duty of care to school staff and of the importance of continuing to treat suspended members of staff as full-time employees fully involved in the work of the school.

Anonymity for those subject to allegations

59. The Department says that "every effort should be made to maintain confidentiality and guard against unwanted publicity while an allegation is being investigated or considered".[98] There is no statutory right to anonymity: instead, the press (through the Code of Practice enforced by the Press Complaints Commission) and the police (through internal guidance) exercise self-regulation to protect people from being identified up until the point at which charges are brought. The DCSF feels that "the current guidance on confidentiality is working well" and it told us that a review of implementation of guidance on handling allegations had revealed very few recent cases of press reporting on allegations before a charge had been made.[99]

60. The "Voice" union pressed for the right to anonymity to become statutory.[100] In the past, teacher unions have pressed for an extension of the existing informal right to anonymity for school staff up until the moment of court decision, on the basis that the harm caused to teachers by a false allegation is so great that the impact must be limited to those who have been found guilty of misconduct. The Association of School and College Leaders, the NASUWT and the NUT continued to advocate this in written evidence.[101] Mr Kaufman pointed out that complainants in rape cases were entitled to anonymity and that there was no practical obstacle to ensuring anonymity throughout a judicial process.[102] However, in oral evidence to us, the NASUWT suggested that the success of recent efforts to speed up investigations had led to fewer cases being exposed in the media. It added that, for most teachers, the biggest issue was not anonymity but the recording and disclosure of information on allegations.[103] We deal with this issue in section 4 of the Report.

61. The NSPCC is opposed to the extension of anonymity, arguing that it would not improve protection for children, would treat teachers as a special case without justification, and would remove the potential for more witnesses or fellow sufferers to become aware of the charges and to come forward.[104]

62. The practicality of maintaining anonymity throughout an investigation seems questionable. Mr Stanley, Chief Executive of the Teacher Support Network, said that "anonymity is something which people would desire" but that "whether it is possible to achieve, given the nature of schools, is potentially more difficult".[105] A chair of governors at a special school for children with emotional and behavioural difficulties argued that, while anonymity might be retained for a short period, "in a small community like a school, other staff and parents find out who is being interviewed and draw their own conclusions".[106] The National Governors' Association was similarly doubtful about the practicality of anonymity, noting that school staff, governors and local authorities could be held to account for any breaches of confidentiality, but that this was not the case for pupils and parents.[107] NASUWT pointed out that a suspension of a member staff, which would entail their absence from school, would not stop the "rumour mill" and nor would anonymity.[108] Only one witness seemed to think that anonymity could be maintained.[109]

63. We are not sure that a right to anonymity up until the point of court decision would deliver a significant benefit to those subject to allegations. Even if it were to succeed in preventing details of an allegation from being published or broadcast by the local media, it might do little to stop details being circulated amongst children and parents. The argument that anonymity up until the point of court decision could remove the potential for more witnesses or fellow sufferers to become aware of the charges and to come forward is a strong one. On the other hand, exposure of an allegation under investigation will almost invariably tarnish the reputation of the member of staff concerned, and the principle of 'innocent until proven guilty' will be undermined. We recommend that there should be further consideration by the Department of the case for statutory anonymity for school staff subject to allegations.

Independent investigations

64. In cases where police or local authority social services have concluded investigations and have found no case to answer, there may still be grounds for disciplinary action against the member of staff concerned. To establish the facts and inform the disciplinary hearing, a further investigation may be required and, if the allegation is serious enough, an independent investigator may be appointed.

Inequity

65. Supplementary guidance for practitioners handling allegations, issued by the Department in May 2009 for consultation, specifies that the investigating officer "should approach the investigation on the basis of an objective fact-finding exercise" and that "the process must be robust, well informed and ensure the most rigorous standards for safeguarding children are observed, whilst at the same time ensuring the balance of justice and fairness for the employee".[110]

66. However, many submissions argued that the investigatory process treated the accuser and the accused unequally. It was claimed that:

The accused is not always informed of exact charges: one submission suggested that this was "to limit opportunities for tampering with potential evidence";[111]
The accused is interviewed last, and the investigator remains unaware of innocent explanations of events until the end of the process;
Whereas the investigator is free to seek evidence from all quarters, suspended staff do not have access to the same range of information and are commonly banned from all contact with colleagues, thereby isolating them and disadvantaging them in mounting a defence;[112] and
The accused has no access to the findings of the investigation.[113]

67. We have not investigated these individual claims, and we do not seek to express a view on whether they are justified. Nor, in most cases, have we been able to assess whether they are isolated instances of bad practice. However, there was a common thread running through submissions from teachers who had been subject to investigation, that the investigation seemed to be conducted on the basis that the person being investigated was guilty and that the onus was upon them to prove themselves innocent.[114] For those who maintained their innocence throughout, the strong impression was of an erosion of the principle of "innocent until proven guilty". We believe that an investigation must not be an exercise purely to assemble a case against the staff member concerned.

Investigators

68. We heard criticism of the methods used for selecting independent investigators. Departmental guidance says that "many local authorities already provide for an independent investigation of allegations in some way, often as part of the personnel services that schools and FE college can buy in from the authority".[115] The NUT, however, spoke of a new tendency to subcontract the investigation to an external body much more frequently; and it questioned whether engaging a representative of a body such as a children's charity or any other agency with an interest in child protection to carry out an investigation might raise fears and heighten tensions.[116] A Chairman of Governors at a primary special school claimed that independent investigators "tend to be drawn from organisations that are built on a presupposition of adult guilt, or are ex-employees of the commissioning authority".[117] FACT (Falsely Accused Carers and Teachers) said that investigators were "selected according to status rather than experience" and were not properly trained;[118] and another witness questioned whether investigators were necessarily alert to the need to balance evidence.[119]

69. The NASUWT drew our attention to the independent investigation service introduced in Wales in 2006.[120] The Staffing of Maintained Schools (Wales) Regulations 2006 introduced a requirement for governing bodies of maintained schools in Wales to appoint an independent investigator to investigate child protection allegations made against school staff. The Welsh Assembly Government awarded a contract to Servocadream to provide an independent investigation service for governing bodies; the role of the independent investigators is to interview people involved in a child protection allegation and could result in them having to interview or re-interview children. Although it was initially estimated that there would be approximately 20 cases per year requiring independent investigation, in the first year of the contract around 100 referrals were made to Servocadream.[121]

70. We note that Servoca plc, which supplies the independent investigators through Servocadream, describes its "consultants" as having "extensive experience in law enforcement, ranging from leading complex fraud, corporate and financial investigations, to carrying out surveillance operations". Servoca plc says that it holds "an extensive database of former police officers and staff and other experts, giving you access to a large and diverse bank of specialist resources as and when you need them".[122]

71. We believe that former senior employees of local authority children's services departments will often be well placed to conduct independent investigations as long as they do not carry out that function on behalf of a school in their former local authority area. We believe that the criteria qualifying a person to conduct investigations should be relevant expertise and objectivity. We are not persuaded that it is conducive to confidence in the process for handling allegations if independent investigators appear to be sourced from organisations which might have a particular viewpoint. Nor are we convinced that this is a task which should be contracted out to unknown third parties.

Responsibility for commissioning investigations

72. We found that there seemed to be no definition of who had responsibility for either deciding whether or not to hold an independent investigation or deciding who should be asked to conduct it. There is no clear statement in DCSF guidance; and witnesses seemed unsure or said that it was "ad hoc" or would depend on the severity of the allegation.[123] Clare Collins, the Chair of the National Governors Association, implied that, if the headteacher was the subject of the allegation, "the governors would have to work closely with the local authority as to who is allocated the role of the independent investigator" and that "they would be dependent on it to identify one".[124]

73. We asked the Department who was responsible for decisions on whether to hold an investigation and who should carry it out. The Department replied that "it would normally be the decision of the employer as to whether an independent investigation is done and, if so, who should carry it out", and it pointed towards relevant published guidance:

"In some such cases[125] further enquiries will be needed to enable a decision about how to proceed. If so, the local authority designated officer should discuss with the head teacher/principal and chair of governors how and by whom the investigation will be undertaken. In straightforward cases that should normally be undertaken by a senior member of the school or FE college staff. However, in other circumstances, lack of appropriate resource within a school or FE college, or the nature of complexity of the allegation, will require an independent investigator." [126]

We find the guidance hazy about where responsibility lies for these decisions; and the Department's statement to us that these decisions would normally be taken by the employer suggests that in some cases they would fall to the local authority and in others to the governing body.

74. We recommend that there should be a clear presumption in all schools that decisions on whether or not to appoint an independent investigator to gather any information necessary to inform disciplinary proceedings, and on who should be appointed, should be taken by the chair of governors. Local authorities will have a direct interest, given their statutory role to safeguard children and sometimes in a non-statutory role as employer. Headteachers may come under especial pressure when an allegation is made and may in any case be the subject of the allegation. We believe that governors, properly trained and equipped with advice, will be more objective than either local authorities or headteachers. We would expect the chair of governors to consult closely with the headteacher, who will have first-hand knowledge of the pupil or parent making the allegation, and with the local authority, in reaching any decision.

Disciplinary hearings

75. Governing bodies set up disciplinary panels when required and have a duty to ensure that equal weight is given to all evidence presented and that any hearing is fair. Governors rely largely on advice from others—principally the headteacher and the local authority—in conducting hearings.[127] The burden of proof in disciplinary hearings requires that the evidence demonstrates, on the balance of probabilities, that there is a strong likelihood that the individual is unsuitable for his or her current position.[128]

76. Some of those who submitted evidence were impressed by the standards of disciplinary hearings. The "Voice" union noted only few examples of unsatisfactory procedures;[129] and the Association of School and College Leaders believed that the operation of panels was "generally satisfactory".[130] However, the approach taken by governing bodies in giving credibility to witnesses and in weighing evidence was described in one written submission as regularly being "inadequate" and "shockingly unfair".[131] The National Governors' Association told us of anecdotal evidence that the quality of advice given was variable, and it proposed that local authorities establish a pool of clerks to advise on procedure.[132] We agree. We recommend that local authorities form a pool of procedural advisers to attend disciplinary hearings and to advise school governors on the conduct of those hearings.

77. One headteacher who had appeared before a disciplinary panel suggested that if allegations were serious, the accused should be entitled to take a legal representative into the hearing.[133] When we raised this suggestion with one witness, we were told that this could happen already, depending on the status of the school and on whether the governors of the school were willing to accept legal representation.[134] We note that disciplinary panels would be expected to follow ACAS guidelines on the conduct of proceedings and would be expected to allow the employee under investigation to be accompanied by a colleague or union representative.[135] FACT told us that it was "exceptionally rare" for an employer to permit a solicitor to attend such meetings.[136]

78. Our attention was drawn to a judgment in the High Court in March 2009, relating to a school employee who had been denied legal representation both at a disciplinary hearing before a panel of the school's governors and at a later hearing of his appeal against dismissal. The employee had been accused of sexual misconduct against a pupil and, following dismissal, had been referred to the Secretary of State to consider whether to use his powers under section 142 of the Education Act 2002 to prohibit the employee from working with children in educational establishments. At judicial review, Mr Stephen Morris QC took the view that the employee could not fairly have been expected to represent himself when the nature of the allegations, and the potential consequences of a 'section 142' direction, were so serious; and he deemed that the presence of a colleague or trade union representative at the hearings offered insufficient protection. He accordingly found that the school's refusal to permit legal representation had denied the employee a right to a fair hearing.[137]

79. Having considered the evidence, we are persuaded that all school staff subject to an allegation should have the right to have legal representation or to be accompanied by a trade union representative, whichever they prefer, in all disciplinary hearings.

80. Once a decision has been taken to instigate disciplinary proceedings, employers should consider carefully what information, if any, should be communicated to parents and staff.

81. The NUT pointed out that disciplinary procedures were a particular problem for supply teachers and that, while schools would share details of the allegation with the supplying agency, neither the agency nor the school would institute disciplinary procedures. Supply teachers therefore remained in limbo, unable to have the case heard and to have an opportunity to clear their name.[138] A supply teacher subject to an allegation should be treated on an equal basis as a full member of staff and should be investigated by the school at which the allegation is made. The results of any investigation should be reported to the employing agency and to the Independent Safeguarding Authority.

Guidance

82. The complexity of a process which needs to adapt to many different forms of allegation is inescapable. However, we were struck by the many layers of overlapping guidance, including:

Safeguarding Children and Safer Recruitment in Education: DCSF guidance for people working with children. Chapter 5 deals with handling allegations;

Working Together to Safeguard Children: DCSF guidance for practitioners and managers. Appendix 5 deals with handling allegations;

Handling Allegations of Abuse made against adults who work with children and young people: additional guidance prepared by DCSF for practitioners and currently subject to consultation;

Guidance issued jointly in 2002 by The National Employers' Organisation for School Teachers (NEOST)—the employer representative body concerned with conditions of service for teachers in maintained schools—and teacher unions on practice and procedure in dealing with allegations; and

Guidance produced locally by local authorities or Local Safeguarding Children Boards

While all these publications will have their strengths, a head teacher suddenly faced with a potentially serious allegation might have to trawl through several of them before being satisfied that they were equipped with the necessary knowledge to reach an informed decision. Some written submissions to the inquiry cited as current guidance publications which have in fact been superseded, indicating further layers of confusion. Clare Collins, Chair of the National Governors' Association said that "I cannot emphasise too much how difficult it can be to get hold of the information; as a chair of governors you won't have that on your shelf. It will be on a website somewhere, it might be password protected…".[139]

83. When we asked the witness representing the NUT whether there should be a simple guide for headteachers on what to do when an allegation is made, she said that there used to be a short guide and that "it would be very useful if there was one place - a guide that a head teacher can pull off the shelf immediately if there is a problem".[140]Ms Collins agreed that "a small booklet" would be "incredibly useful" for governors.[141]

84. We recommend that the Department should take the opportunity offered by the present consultation on guidance for practitioners to rationalise the guidance which it produces on handling allegations. The Department should publish a very short handbook, summarising procedures and the criteria to be taken into account at key decision points, and containing references to a single authoritative and detailed volume of guidance drawn up in consultation with local authority bodies, children's organisations and teacher unions.

85. We also note evidence that, although guidance is already in place, it is not always followed. The NSPCC told us that schools were often unfamiliar with managing procedures for dealing with allegations.[142] One of the reasons is likely to be a lack of training: the National Governors' Association urged that head teachers and chairs of governors be trained on handling allegations as part of their induction.[143] Many years might elapse, however, between induction and being required to handle an allegation. We note examples of good practice by local authorities in overcoming this by supporting governors in establishing disciplinary panels and following procedures.[144]

86. The General Teaching Council for England suggested that "local authorities and personnel providers should be considering an extensive programme of support and training to ensure that schools operate all the relevant procedures in relation to allegations against school staff effectively, promptly and fairly".[145] We agree with the principle behind this suggestion. Employers of school staff should be more energetic in ensuring that key figures in each school are trained in how to handle allegations and that they have access to support services, including a helpline. We also believe that employers should carry out more systematic reviews of how individual allegations were handled, to assess in particular: