Memorandum submitted by the Department
for Children, Schools and Families (DCSF)
INTRODUCTION
1. Everyone in the education service shares
the objective of helping to keep children and young people safe
from harm. Safeguarding children must always be our top priority.
It is therefore essential that all allegations are taken seriously
and dealt with fairly, quickly and consistently in a way that
provides effective protection for children whilst balancing the
need to support the person who is the subject of the allegation.
We are keenly aware of the effect that false or unfounded allegations
can have on a person's health, family, and career. Regrettably,
though, some allegations are true. Allegations of abuse can be
particularly upsetting, but being abused by a person in a position
of trust and authority can have devastating effects on a child.
2. It is rare for an allegation to be deliberately
false or malicious. Most practitioners agree that children making
malicious allegations may have complex needs and in some cases
may be making the allegation to draw attention to abuse or other
issues elsewhere in their life.
3. We have been working to ensure that the systems
for dealing with allegations are fair, rigorous and timely and
strike the right balance between providing effective protection
for children against abuse and providing support for staff who
may upon investigation be found entirely innocent of the allegations.
PROCEDURES FOR
HANDLING ALLEGATIONS
Allegations of Abuse
4. Procedures for handling allegations of
abuse made against those who work with children and young people
are contained within Chapter 5 of Safeguarding Children and
Safer Recruitment in Education and Appendix 5 of Working
Together to Safeguard Children. These procedures apply to
all cases where it is alleged that a member of staff (or a volunteer)
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 or children in
a way that indicates s/he is unsuitable to work with children.
5. The procedures were introduced in November
2005 for education staff, and in April 2006 for the rest of the
children's workforce. The new arrangements introduced the following:
— a national standard process built
on effective practice;
— target timescales for each stage
of the process;
— better case management and decision
making built on close cooperation between agencies; and
— better and quicker information sharing,
and close liaison between the police and Crown Prosecution Service
on criminal investigations.
6. In 2007 the Department conducted a review
of implementation of guidance on handling allegations of abuse
made against those who work with children and young people. The
review gathered evidence on the implementation of guidance through
a limited public consultation, interviews with key stakeholders,
a data collection from local authorities, progress reports by
Local Safeguarding Children Boards and a review of media cases.
In brief, the review, which has now been published, concluded
that:
— there are no fundamental problems
with the guidance itself that would require substantial revision;
— there is a need for more awareness-raising
in some sectors to embed the guidance in the wider children's
workforce, and practitioners would like further practice guidance
on a number of issues; and
— more work needs to be carried out
with police to explore the scope for speeding up investigations
once they have left the local authority.
7. Based on these conclusions, we have been
taking the following further action:
— carrying out further awareness-raising
for sectors of the children's workforce to which guidance on allegations
was new in 2006. This will be through the safe recruitment guidance
which is being produced by the Children's Workforce Development
Council;
— improving the training offer for
allegations management through inclusion of training on allegations
in the National College of School Leadership safe recruitment
training, and the online training being developed to accompany
the CWDC Safe Recruitment guidance; and
— producing additional practice guidance
on handling allegations for practitioners. This was published
for consultation on 13 May. The consultation runs until 7 August.
SCALE AND
NATURE OF
ALLEGATIONS
Allegations of Abuse
8. As part of the review, data on allegations
was collected via a voluntary collection from Local Authority
Designated Officers (LADOs) in England's local authorities. The
request covered data for the period 1 April 2007 to 30 September
2007. A total of 130 responses were received, of which two were
unusable due to data quality. The results referred to below are
collated from 128 returns which account for 85% of local authorities
in England.
9. The total number of allegations referred to
the LADOs based on 85% of authorities was 4,069 in the period
1 April 2007—30 September 2007. These originated from the
following employment sectors:
| Employer | Percentage (as %of total referrals):
|
| Social Care | 13.2%
|
| Health | 2.1% |
| Education | 52.0% |
| Foster Carers | 12.0% |
| Police | 1.2% |
| Secure Estate | 2.6% |
| Other | 16.9% |
10. These figures reflect allegations being reported across
the entire children's workforce. The majority of allegations are
minor and fewer than 10% result in dismissals but it is important
that all allegations are handled effectively, including consulting
the LADO so that independent consideration can be given and consistency
maintained. The number of allegations reported shows that more
allegations are being reported to LADOs, as recommended by the
guidance.
11. Data was also collected on the nature of abuse broken
down by the types of abuse described in Working Together to
Safeguard Children. This showed the following:
| Employer | Physical
| Emotional | Sexual
| Neglect |
| Social Care | 57.8%
| 9.5% | 27.1% | 5.7%
|
| Health | 44.6% | 3.6%
| 41.0% | 10.8% |
| Education | 61.6% | 6.8%
| 29.3% | 2.4% |
| Foster Carers | 58.7% | 12.7%
| 19.1% | 9.5% |
| Police | 40.4% | 4.3%
| 51.1% | 4.3% |
| Secure Estate | 76.2% | 5.7%
| 16.2% | 1.9% |
| Other | 46.8% | 6.5%
| 40.5% | 6.2% |
| Total | 58.0% | 7.7%
| 29.8% | 4.5% |
12. The data shows that on average across agencies there
is a higher percentage of allegations relating to physical abuse
(58%), followed by sexual abuse (29.8), emotional abuse (7.7%)
and neglect (4.5%). Secure Estate had a much higher percentage
of allegations relating to physical abuse (76.2%) than the other
abuse. Police reported more allegations relating to sexual abuse
(51.1%) than physical abuse (40.4%).
ANONYMITY
13. We appreciate that teachers and other education staff
feel vulnerable to being identified because of their public profile.
Our guidance is clear that every effort should be made to maintain
confidentiality. The present system of self-regulation, overseen
by the Press Complaints Commission, provides safeguards against
the publication of inaccurate or misleading information. The Association
of Chief Police Officers has also strengthened its guidance to
police forces aimed at preventing people being identified if they
are not charged with a criminal offence.
14. The evidence collected during the review suggested that
the current guidance on confidentiality is working well. The wide
majority of respondents to the consultation experienced no problems
with breaches of confidentiality. Out of 96 responses to the consultation
all but three requested further guidance and training on this
issue, usually related to information sharing, rather than legal
anonymity.
15. The review obtained a number of examples of best
practice in schools, for example where staff, pupils and parents
have been informed by letter of an allegation on the morning that
a teacher went to court but confidentiality had been maintained
up until that point. The media review revealed very few recent
cases of press reporting on allegations before a charge has been
made, and we were not made aware of significant cases through
the consultation responses or interviews.
16. The Press Complaints Commission also confirmed that
it has received very few complaints from people facing allegations
of abuse being reported in the press. This suggests that the current
arrangements are working well.
DISCIPLINARY PROCEDURES
FOR SCHOOL
STAFF
17. Local authorities and governing bodies are responsible
for putting in place appropriate procedures to deal with grievances,
breaches of discipline and dismissal. In turn the governing body
is responsible for setting out disciplinary rules and procedures
for dealing with a lack of capability on the part of any member
of staff employed at the school. They must also have procedures
for staff to follow if they have a grievance or complaint about
their employment.
18. The capability and disciplinary procedures should be designed
to help and encourage staff to maintain standards of conduct,
attendance and job performance. A consistent application of these
procedures should offer schools, as employers, a mechanism to
achieve the required high standards from staff whilst offering
fair and equitable treatment, and offer employees protection against
unfair action by the employer.
19. These basic principles have been agreed by the trade
unions:
A typical disciplinary procedure will have the following
stages:
— A formal, oral warning in the case of a minor
offence.
— A written warning for subsequent minor offences
or a more serious offence.
— A final written warning for further misconduct.
The warning should make it clear that dismissal may follow failure
to comply.
— Dismissal with appropriate notice will follow
if there is insufficient improvement.
LEGAL OBLIGATIONS
OF THE
EMPLOYER
20. The Employment Rights Act 1996 requires the employer
to provide written information to their employees about certain
aspects of the disciplinary procedure.
21. All governing bodies of maintained schools have a duty
to establish disciplinary rules and procedures and ensure that
they are made known to staff. It is the responsibility of the
head teacher to manage the disciplinary procedures as part of
his or her professional duties and to ensure that proper levels
of staff performance are established and maintained.
CODES OF
PRACTICE
22. The Advisory, Conciliation and Arbitration Service
(ACAS) is empowered to produce codes of practice on disciplinary
rules and procedures. These codes provide employers with practical
guidance on how to draw up and effectively operate disciplinary
rules and procedures. ACAS has recently revised the Code of Practice
on Disciplinary and grievance Procedures with effect from 6 April
2009.
23. Breach of the ACAS codes does not render the employer
liable to the proceedings, but a failure to follow the code could
be taken into consideration by a subsequent Employment Tribunal
(ET). In deciding on whether a dismissal is unfair the ET is primarily
concerned with the fairness of the procedures followed by the
employer prior to a dismissal.
24. ACAS guidelines on what should be included in disciplinary
proceedings include the following:
— State the type of action and penalties which can
result from unacceptable conduct.
— Have a clear timetable for dealing with disciplinary
matters.
— Give full details of the disciplinary offence.
Investigate the alleged disciplinary offence before disciplinary
action is taken.
— If suspension of the employee during the investigation
is considered necessary, it should be for as short a period as
possible.
— Allow employee to be accompanied by a colleague
or union representative.
— Allow employees to state their case before a decision
is made. Unless in the case of gross misconduct, not to dismiss
on first offence.
— Provide the employee with the right of appeal.
If appropriate, indicate the type of offence that would be considered
gross misconduct.
APPEALS
25. The opportunity to appeal against a disciplinary
action is essential to natural justice. Appeals should be dealt
with as promptly as possible. The time limit usually set for lodging
appeals is five working days. Individuals should be informed of
arrangements for appeal hearings and also of their right to be
accompanied. The individual should be informed of the result of
the hearing as soon as possible and this should be confirmed in
writing.
SUSPENSION
26. Our guidance sets out where suspension is relevant,
although each case will turn on its own facts. Governing bodies
need to be sure that they are acting reasonably and have grounds
for the suspension and accordingly are encouraged to obtain legal
advice where necessary.
27. Suspension should only occur where there is reasonable
evidence to demonstrate that the individual's presence at work
could be prejudicial to the investigation in any way, or for example
if it is necessary to suspend in order to protect children, or
is in the public interest. The reasonableness of an employer's
action will depend on the evidence in their possession at the
time of the suspension.
28. An additional point to note is that the suspension
should not be for longer than is strictly necessary. The employer
must act reasonably and diligently once the individual is suspended.
A failure to proceed promptly could justify an employee resigning
and claiming unfair constructive dismissal. Furthermore, alternatives
to suspension should also be considered. It may be that alternatives
would not be appropriate but it is important to be able to demonstrate
and record that alternatives were considered and rejected.
29. The Department's review found that the use of suspension
has improved, in the sense that it is being used as an automatic
response to allegations less often. However, practitioners said
that they would like to see more practice guidance and case studies
to help them in deciding whether suspension is appropriate in
certain situations. The draft practice guidance referred to in
paragraph 7 above contains an annex on suspension setting out
when suspension should be considered, alternatives to suspension,
the process for considering and managing suspension, and guidance
on supporting the individual.
RETENTION OF
RECORDS OF
ALLEGATIONS
30. Paragraph 5.10 of Safeguarding Children and Safer
Recruitment in Education says:
"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".
31. However, we do intend to amend guidance to make clear
that allegations which have been investigated and demonstrated
to be completely untrue do not need to be included in teachers'
references. This will be done as part of the revisions to Safeguarding
Children and Safer Recruitment in Education planned to take
account of the vetting and barring scheme being implemented under
the Safeguarding Vulnerable Groups Act.
May 2009
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