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

4  Handling records of allegations

87. Records of allegations are kept by employers in individual personnel records and, if the allegation has been referred to the police for investigation, by police forces. The information contained in those records, and the way in which it is presented, can have a direct impact on a person's potential to secure appointment to other posts involving work with children. In effect, it can determine their career mobility; and so the treatment of records of allegations is a fundamental issue for teacher unions.[146]

Personnel records

88. The Department's guidance on retention of details of allegations in personnel records states that:

"It is important that a clear and comprehensive summary of any allegations made, details of how the allegation was followed up and resolved, and a note of any action taken and decisions reached, is kept on a person's confidential personnel file, and a copy provided to the person concerned. The purpose of the record is to enable accurate information to be given in response to any future request for a reference if the person has moved on. It will provide clarification in cases where a future CRB Disclosure reveals information about an allegation that did not result in a criminal conviction. And it will help to prevent unnecessary re-investigation if, as sometimes happens, an allegation re-surfaces after a period of time. The record should be retained at least until the person has reached normal retirement age or for a period of 10 years from the date of the allegation if that is longer".[147]

89. As several of those who contributed to this inquiry observed, the policy on retention of records of allegations, whatever their outcome, flows from the Soham murders and the recommendations of the Bichard Inquiry which followed.[148] The NSPCC pointed out that Ian Huntley, before committing the Soham murders, had had nine separate allegations made against him. These allegations had ranged from sexual assault to rape; all but one had been investigated. The NSPCC said that this demonstrated the importance of retaining records of allegations, which may be unsubstantiated only because of a lack of evidence or because allegations had been withdrawn.[149]

90. A contrary view was put forward by the National Governors' Association (NGA), which said in its written submission that "there is no justification for retaining details [on a personnel file] of an allegation which has been shown to be false".[150] In oral evidence, the Chair of the NGA clarified that the use of the word "false" in this context referred to cases where it had been demonstrated that the alleged events could not have taken place and the member of staff had been totally exonerated.[151] We note also that the former Lord Chancellor, the Rt. Hon Lord Falconer of Thoroton QC, when speaking at the 2007 conference of the National Association of Head Teachers, said that "where it's demonstrably the case that the allegation is false, there should be greater discretion as to whether it's recorded".[152]

91. Other factors need to be taken into account before we can reach a conclusion on this issue. We deal with two such factors below: the terminology used in personnel records and the use made of those records.

Terminology used in personnel records

92. It is important to be rigorous in the terminology used to describe the outcome of cases. An inexact description of the outcome of an investigation into an allegation could wrongly suggest an element of guilt. A record of "no evidence to support the allegation" might be factually correct but does not indicate whether there was no evidence simply because the allegation had absolutely no foundation or whether the allegation was deemed to have some credibility but that there was no evidence to support it. Describing an allegation as "false" is similarly ambiguous, giving little idea as to whether the allegation was unfounded, malicious or unsubstantiated, and we were told that confusion had arisen as a result. [153]

93. In the supplementary guidance for practitioners issued in draft in May 2009 for consultation, the Department has set out definitions of some of the key terms used for outcomes of investigations:

  • "An unsubstantiated allegation means that there is insufficient identifiable evidence to prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.
  • The term 'unfounded' means that there is no evidence or proper basis which supports the allegation being made, or there is evidence to prove that the allegation is untrue. There is the possibility that the allegation may be malicious (see below), but it might also indicate that the person making the allegation had misinterpreted the incident or was mistaken about what he/she saw, or was not aware of all the circumstances.
  • The term 'malicious' implies that an allegation, either wholly or in part, has been made with a deliberate intent to deceive or cause harm to the person subject to the allegation".[154]

We note that the NSPCC favours the use of these terms rather than the word "false" to describe allegations which lead to no further action.[155]

94. We commend the Department for making clear, in an Annex to new draft guidance for practitioners, the distinctions between terms used to describe outcomes of investigations. However, the phrase 'unsubstantiated allegation' carries with it a whiff of guilt. It should be used with particular care and only when no other term will suffice. The Department should also make clear in the body of the guidance that those who record outcomes of investigations should use those terms in describing allegations which lead to no further action, to avoid any ambiguity.

Use of personnel records

95. School leaders face decisions on whether or not to reveal details of an allegation in a reference provided to a prospective employer. The DCSF told us that it will revise guidance to make it clear that allegations which have been demonstrated to be "completely untrue" do not need to be included in teachers' references.[156] While this is a positive and welcome step which allows more discretion, headteachers will still be required to decide whether or not an allegation has been demonstrated to be completely untrue. Many, we believe, will err on the side of caution.

96. It may be that personnel records are also taken into account by the Independent Safeguarding Authority, established under the Safeguarding Vulnerable Groups Act 2006 to assess the suitability of people to work with children and vulnerable adults. There appear to be three main elements of the ISA's task:

  • The Authority will make independent decisions on cases referred to it by employers who have ceased to use a person's services for reasons of misconduct where there has been harm or risk of harm to a child.[157] Those deemed by the Authority to be unsuitable to work with children will be placed on a list barring them from certain activities and workplaces;
  • From November 2010, all new workers seeking to work paid or unpaid with children (including school staff) must gain ISA registration before starting work; and
  • From January 2011 onwards, all members of the existing workforce will need to apply for ISA registration to continue working in their post. This process is expected to take five years.[158]

97. Applications for registration by the ISA are to be made through the Criminal Records Bureau, which will gather conviction and caution information as well as any information held locally by police forces and pass it to the ISA. The ISA will consider the information and decide whether or not the individual poses a risk of harm and should be barred. The individual will then be invited to make representations before a final decision is taken.[159]

98. It was not clear to us, from the information supplied by the Department or that made available by the ISA on its website, whether the ISA will rely upon information from personnel records as well as information supplied by the Criminal Records Bureau. We believe that it should do so. The decisions of the Independent Safeguarding Authority on the suitability of individuals to work with children should be made on all available and relevant information, including that held in their employers' personnel records.

99. The decision to establish the Independent Safeguarding Authority has been taken, and its work has begun. The Authority will now need to be trusted to make fair decisions on registration and barring, based on its expertise and taking into account available evidence and representations from those being assessed. We appreciate the desire of those who have been the subject of a totally unfounded allegation to clear their name and have the allegation deleted from their personnel records. The NASUWT pointed out, however, that some unfounded allegations might lead to a disciplinary procedure which, even if it found that there was no case to answer, would appear in personnel records; so removal of the allegation would achieve little.[160] There is also value in the consistency of having decisions on whether or not to retain particular records taken by a single body with the necessary expertise. We believe that the Independent Safeguarding Authority should take responsibility for deciding whether allegations recorded in a personnel file of a member of school staff should be retained or expunged. We therefore recommend that records of all such allegations should be retained by employers unless and until the Authority authorises their deletion.

Police records and disclosure

The content of enhanced disclosures

100. It is mandatory for all newly appointed school staff to be subject to an enhanced disclosure Criminal Records Bureau (CRB) check.[161] Whereas information disclosed under a standard disclosure CRB check will list convictions, cautions, reprimands and final warnings and will indicate whether any information on the applicant is held on lists of people barred from working with children or vulnerable adults,[162] chief officers of police are obliged to provide supplementary information in response to a request for an Enhanced Disclosure, namely "any other information which a chief police officer considers might be relevant to the job application in question". This will be non-conviction or "soft" information which is held locally in police records and which "is considered by the police to represent a factual record of previous events that an employer in the most sensitive type of occupation should be aware of in making an employment decision affecting the most vulnerable groups of people".[163]

101. In assessing what information to disclose for an enhanced disclosure CRB check, chief police officers are guided by Home Office Circular 5/2005[164] and by the Quality Assurance Framework, described as "a standardised approach to processing local intelligence information relating to a disclosure application held by police force disclosure units".[165] Mr Gargan, Assistant Chief Constable at Thames Valley Police, told us that the Quality Assurance Framework included "forms of words" and model ways of articulating the decision-making rationale for those who prepare disclosures; and he believed that it was contributing to "increasing levels of uniformity" across police forces in handling disclosures.[166]

102. Several submissions expressed concerns about the disclosure of "soft" information. The "Voice" union reported that its members had sometimes been unhappy about the content, with unproven allegations appearing as fact;[167] and the NUT said that Home Office guidance on such disclosures should be more robustly applied.[168] In one case recently debated in the House, it was reported that the "soft information" disclosed by the police force contained no fewer than 14 factual errors.[169]

103. An applicant for a post who undergoes a CRB enhanced disclosure will not know in advance what "soft" information held on police records is likely to be disclosed. The NUT reported that its members had quite often not appreciated what information was on their record, and the union sometimes advised people thinking of moving from one post to another to find out first, through a data subject access request, what information was on their record.[170] Mr Kaufman, a solicitor who regularly acts on behalf of school staff subject to an allegation, pointed out that solicitors' files or court transcripts were not kept indefinitely and that an applicant would, after perhaps ten years, lose access to information which might help them prove that an allegation which had appeared on a CRB enhanced disclosure check had in fact been unfounded.[171]


104. As with personnel records, the terminology used by police officers both in recording the outcome of an investigation for police records and in wording disclosures of "soft" information in response to a CRB Enhanced Disclosure check was criticised. The Association of Teachers and Lecturers told us that "each local police force records what they consider to be relevant to the post an individual applies for. There is no uniformity in the type or manner in which a local police force records details of an allegation. To ensure uniformity, guidance should be provided for local police forces on the information to be included in an enhanced disclosure form".[172]

105. The NASUWT noted an apparent reluctance by police officers investigating allegations to record as an outcome that there was "no case to answer" even when the allegation was fabricated, preferring instead to say that there was "not enough evidence to proceed" or that "no charges [were] brought but the matter was referred to the employees to deal with internally".[173] We agree that the latter phrases imply that the alleged incident may have occurred but that there was not enough evidence to prove it. The guidance prepared by the Department for practitioners on the distinctions in terminology for different outcomes of an investigation has value for police officers and should be either disseminated to police forces as it stands or incorporated into existing police guidance.

Protecting the subject of the disclosure

106. When we questioned Mr Gargan on how police officers handled enhanced disclosures, he said that decisions on disclosure in his force were taken only by chief officers and that it was the role of those officers to challenge the phrasing of a proposed disclosure. He carried out that work himself and, in the majority of cases, he authorised disclosure of additional information. Five such disclosures had been made in relation to teachers in the Thames Valley police area in 2009 so far: three related to violence, one to a matter of public indecency and one to grooming of a young woman in the workplace.[174] Mr Gargan maintained that disclosures which strongly implied guilt were made "only in the most exceptional circumstances" and were not made "on the back of no evidence". He gave as examples cases which would have proceeded but which had been dropped because the victim had died or the witness had emigrated, or because the case had run out of time.[175]

107. Mr Barnes, National Secretary of FACT (Falsely Accused Carers and Teachers) pressed for a method of appeal against information which was included on CRB checks.[176] Mr Gargan told us that there was already an avenue of appeal through the Criminal Records Bureau, through which police forces could be asked to reconsider the "soft" information disclosed.[177] The Bureau's disputes procedure enables applicants to challenge a disclosure if he or she believes that the content of the application (or elements of it) are incorrect.[178]

108. An alternative means of protecting school staff from the disclosure of unfounded allegations was put to us by Amanda Brown, giving oral evidence on behalf of the NUT. She suggested that there might be a role for the Independent Safeguarding Authority in seeing a disclosure of "soft" information before it was sent to the applicant, investigating any allegations which were referred to in the disclosure, and removing any reference from the disclosure if the Authority was satisfied that the subject of the disclosure was "safe".[179] Chris Keates, General Secretary of the NASUWT, appeared to support this idea when it was raised in evidence.[180]

109. We recommend that the Independent Safeguarding Authority assess proposed disclosures of "soft" information relating to people working or applying to work with children or vulnerable people.

110. The NASUWT argued that guidance was needed for prospective employers on what weight should be given to "soft" information supplied in CRB enhanced disclosures.[181] The union told us that "the climate in schools at the moment is such that if your enhanced disclosure does not come back completely clear, people won't take the risk of appointing you. If you are a teacher who has had an allegation made against you and you have been exonerated, that information is passed on, and your career will still be blighted".[182]

111. We note a well-publicised case in which a person had attempted to challenge at judicial review the disclosure of allegations contained in "soft" information supplied to a prospective employer, on the basis that they lacked credibility and that no action had been taken following police investigation. In his judgment, Lord Justice Richards dismissed the claim, having concluded that the allegations had enough substance to make it reasonable for the chief officer of police making the disclosure to conclude that they might be true; but he was troubled by the prospective employer's insistence that employees should have a "clean" CRB certificate:

"The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a "clean" certificate leaves no room for taking into account what the employee may have to say."[183]

We agree, and we question whether an employer should have the right to reject an applicant or appointee simply on the basis of unproven and quite possibly unfounded "soft" information supplied by chief officers for Enhanced Disclosure CRB checks. The Government should examine this practice and either justify permitting it or take steps to prevent it.

146   Ms Keates Q 29 Back

147   Safeguarding Children and Safer Recruitment in Education, DCSF, 2006, para 5.10 Back

148   For instance the ASCL, Ev 39 Back

149   Ev 33  Back

150   Ev 36. See also memorandum from Mick Madden, Ev 65  Back

151   Clare Collins Q 84 Back

152 Back

153   Memorandum from Voice, Ev 63 Back

154   Handling allegations of abuse made against adults who work with children and young people, DCSF consultation launched on 13 May 2009, Annex A Back

155   Ev 74  Back

156   Ev 81 Back

157   Handling allegations of abuse made against adults who work with children and young people, DCSF consultation launched on 13 May 2009, para 85 Back

158   Supplementary memorandum from the DCSF, Ev 82 Back

159   Supplementary memorandum from the DCSF, Ev 82 Back

160   Chris Keates Q 28 Back

161   School Staffing (England) (Amendment) Regulations as amended. "Newly appointed" is defined as meaning anyone who within the three months before his or her appointment has not worked in either a school in England which brought him or her into contact with children or any post they were appointed to since 12 May 2006 or an FE college in a position of an equivalent nature, defined in the Regulations. See HC Deb 2 June 2009 col. 447W Back

162   Information from Criminal Records Bureau website Back

163   HC Deb, 22 June 2009 col. 610w Back

164   Criminal Records Bureau: Local checks by police forces for the purpose of enhanced disclosure Back

165   HC Deb, 22 June 2009, col. 610W Back

166   Q 81 Back

167   Ev 64 Back

168   Ev 8 Back

169   HC Deb 1 April 2009, col. 1016 Back

170   Amanda Brown Q 30 Back

171   Q 31 Back

172   Ev 70  Back

173   Ms Keates Q 28 and NASUWT Ev 15; see also Amanda Brown, Q 28 Back

174   Q 71 and Q 81 Back

175   Q 82 Back

176   Q 31 Back

177   Q 72 Back

178 Back

179   Q 28 Back

180   Q 29 Back

181   Ev 16 Back

182   Chris Keates Q 28 Back

183   R (on the application of Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin). See also Ev 60 Back

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