Many schools risk failing inspections and reputational damage because they have failed to undertake all the required recruitment checks and complete the Single Central Register properly.
An alarming article was published by the BBC last week (Bradford: Murderer worked in schools despite ban - BBC News) which stated that "a convicted murderer spent almost two years working with children after he was barred from doing so". This highlights that with agency staff and contractors it is possible for issues to slip through the cracks.
The requirements of Keeping Children Safe in Education can be forgotten in the need to fill a vacancy urgently. However it is essential to ensure that all the required checks are completed before an employee starts work and to have robust procedures in place both to capture relevant information pre-employment and to ensure effective induction once employment has started.
Required Checks
The checks that schools need to carry out on their new starters are:
Agency and supply staff
Where staff are supplied by an agency, schools need to obtain written notification from the agency that they have carried out each of the relevant checks set out above. Schools must also obtain written notification from the agency that the agency has obtained the enhanced DBS certificate. Where information is disclosed in the DBS certificate the School must obtain a copy of the DBS certificate from the agency.
Schools should therefore ensure that their contractual terms with any agency they use contain contractual obligations on the agency to provide the information set out above. Schools also need to check the identity of any person supplied by an agency.
Contractors
Where staff work for a contractor, Schools must ensure that their contractual terms with the contractor includes a requirement from the contractor to undertake all of the relevant checks set out above and to provide the School with a copy of the DBS certificate. The School must also check the identity of all individuals employed by the contractor who will be undertaking work at the School before they can commence work at the School.
Applicants with periods of time spent overseas
One of the most challenging aspects of ensuring that checks have been completed before an employee starts work is where they have spent time overseas and so overseas checks are necessary.
It is a matter for the School to consider whether this is needed depending on all of the circumstances. Guidance issued by the NSPCC states that overseas information should be sought on those who have lived overseas for periods of three months or more in the last five years.
Where overseas checks are required the best practice is to obtain a criminal records check from the relevant jurisdiction(s) together with a letter from the professional regulating authority in the country or countries in which the applicant has worked. This can take considerable time. Where there is delay in receiving the overseas criminal records checks, a pragmatic option may be to seek alternative overseas information to satisfy this check, such as an additional reference relating to time overseas.
Where this overseas information is not available schools should seek alternative methods of checking suitability and/or undertake a risk assessment and ensure appropriate measures are put in place.
Starting work pending receipt of the DBS disclosure
If there is a delay in receiving a DBS disclosure, the School has discretion to allow an individual to begin work pending receipt of the disclosure certificate. This will only be allowed if all other checks, including a clear check of the Children's Barred List (where the position amounts to regulated activity), have been completed. It will also be appropriate to undertake a risk assessment and ensure appropriate supervision arrangements have been put in place. These should be kept under review on a regular basis.
Contractual Paperwork
When offering a job to a successful candidate, schools are understandably keen to be welcoming and positive in tone. There is inevitably a tension between this and the legal conditions that an employment lawyer would recommend are included in any offer letter.
It is important to be aware that an offer and acceptance of a job can constitute a legally binding contract. This can be the case even with a verbal offer and acceptance. Ideally, the employment contract should be enclosed with the offer letter, to avoid any dispute over contractual terms. If this is not feasible, then the offer letter should make it clear that the offer is subject to full contractual terms, and all key terms should be highlighted.
Employers are legally required to provide prescribed "written particulars of employment" within eight weeks' of an employee starting work. However, it is preferable to provide the contract as soon as possible, as it is far more difficult to negotiate when time has passed and an individual has started work.
Any offer of employment should also clearly set out the "conditions" that the offer is subject to, for example medical fitness and references. This means that that if the school does not consider that the conditions are satisfied then the contract can be withdrawn, and the school will not be in a position where it has to give notice to terminate.
Induction
An effective induction process is important to ensure that your new member of staff understands the scope of the role and the expectations of the School.
During an induction process, Schools should also ensure that staff are introduced to key policies such as Child Protection, Code of Conduct and Whistleblowing. They should also be told who the Designated Safeguarding Lead is at the school and have required training on child protection and Prevent.
Probation
We suggest that all employment contracts are subject to a probationary period. This provides a framework for both sides to focus on how the role is working out and identify any training or development needs. Should a new employee's performance not be meeting expectations then they can be advised of this at an early stage and the consequences, should there not be sufficient improvement. Although such situations are far from the desired outcome, Schools can help themselves manage them through expressly stating that full disciplinary and capability procedures do not apply during the probationary period, and also providing for a shorter notice period to terminate the contract, to provide greater flexibility.
Probationary periods for teaching staff are often 12 months, so that an assessment can be made over the course of an academic year. For support staff it will usually be shorter and 3 to 6 months' is fairly standard, depending on the nature of the role. Schools can reserve the right to extend probationary periods but must make it clear to the individual if a probationary period has not been satisfactorily completed. The default position will otherwise be that a probationary period has been passed.
Conclusion
The way in which schools manage the introduction of new recruits can help set the tone for the rest of the relationship as well as ensuring that all legal obligations have been complied with. Investing in ensuring the recruitment and induction process are undertaken properly not only means legal compliance, but ensures that expectations are clear from the outset and sets out a framework to address issues should they arise.