This summary is based on Judicium’s HR: Safer Recruitment ‘Sofa Session’ from the 26th of January, with our expert Emily Like, LLB (Hons), LPC.

This session was focused on the reasons why schools must undertake safer recruitment checks; what safer recruitment checks do schools need to undertake; and what should schools do about gaps in their safer recruitment checks for current staff?

Employment Law: Safer Recruitment

Why Must Schools Undertake Safer Recruitment/ Pre-employment Checks?

1. Safeguarding children

2. Complying with statutory guidance

Keeping Children Safe in Education (KCSIE) Guidance must be complied with by all schools (maintained, academies and independent schools). It states that certain checks must be undertaken and then recorded on the Single Central Record (SCR). Ofsted will check that this has been done, so very important that they are done correctly.

3. Prevention of illegal workers

There are civil and criminal penalties if employers employ illegal workers.

What Safer Recruitment/ Pre-employment Checks Do Schools Need to Undertake? 

KCSIE states that the following eight checks must be undertaken.

Ensure you have carefully drafted offer of employment letters and/or contracts of employment and make it clear that offers of employment are conditional upon these pre-employment checks:

1. Verify ID

• • KCSIE states that schools must verify a candidate’s identity because it is important to be sure that the person is who they claim to be. NB: Be aware of potential name changes.

• • The easiest way to verify a candidate’s identity is by checking their name on their birth certificate, where this is available. If the applicant has changed their name (most commonly because they have got married or divorced), they will need to provide evidence of the change of name too, so you will have a combination of documents to verify identity.

• • Visit .gov website for more details [See helpful links below].

2. DBS

• •  KCSIE states that schools must obtain (via the applicant) an enhanced DBS check (including children’s barred list information, for those who will be engaging in regulated activity with children).

• • In accordance with KCSIE schools must obtain a separate children’s barred list check if an individual will start work in regulated activity with children before the DBS certificate is available.

• • What “regulated activity” is can be a complex area but, in summary, a person will be engaging in regulated activity with children if, as a result of their work, they:

a) will be responsible, on a regular basis in a school or college, for teaching, training instructing, caring for or supervising children.

b) will be working on a regular basis in a specified establishment, such as a school, for or in connection with the purposes of the establishment, where the work gives opportunity for contact with children

c) engage in intimate or personal care or healthcare or any overnight activity, even if this happens only once.

• •  As part of the recruitment process (prior to obtaining a DBS), shortlisted candidates should be asked to complete a self-declaration about criminal records, prohibitions and disqualification (NB: it should not be done prior to this stage). Our advice remains that it is possible to request that this is completed and returned confidentially at the application stage provided it is not taken into account in the recruitment decision.

• • You should only ask to declare cautions/convictions which are not “protected”. You should provide detailed guidance to applicants about what they are required to disclose.

3.  If the person has worked outside of the UK consider whether further checks need to be undertaken

• • If the candidate has lived or worked outside the UK, KCSIE states that, the school must make any further checks “the school or college consider appropriate” so that any relevant events that occurred outside the UK can be considered.

• • KCSIE says that, where available, this could include:

a) Criminal records checks for overseas candidates.

b) For teaching positions, obtaining a letter from the professional regulating authority in that county in which the candidate has worked. This is sometimes referred to as a “letter of good conduct”. NB: KCSIE makes it clear that the obligation to obtain the letter is on the candidate themselves.

• • KCSIE says that schools and colleges should seek alternative methods of checking suitability and/or undertake a risk assessment that supports informed decision making on whether to proceed with the appointment.

• •  We are often asked “how far back should we go?” or “how long must the applicant have lived/worked abroad for an overseas check to be needed?”

a) There are no timeframes.

b) Recommendation– Undertake an overseas check when the applicant has worked abroad for 3-6 months in last 5 years. Some schools choose 10 years, but it will depend on the individual circumstances.

c) It is more important if it was long period of time or if recent.

4. Verify mental and physical fitness for work

• •  KCSIE states that schools must verify the candidate’s mental and physical fitness to carry out their work responsibilities.

• • The easiest way to do this is via a “post offer health questionnaire” or a POHQ. To comply with the Equality Act 2010, schools must not ask questions about an applicant’s health before an offer has been made.

• • A POHQ should be used to take “positive action” to assist a disabled person or to check whether a candidate has a disability and to consider whether reasonable adjustments can be made. The results should not be used as a mechanism to retract an offer of employment, unless there is a genuine requirement of the job, which we would strongly advise you seek advice on.

• • If the POHQ flags up concerns about an applicant’s fitness for the role, you will need to tread carefully. No service is required for a claim of disability discrimination, so could put the school at risk of a successful claim if an offer of employment is withdrawn on receipt of a medical report.

5. Verify right to work in the UK

• • KCSIE states that schools must verify the person’s right to work in the UK.

• • If the employee is a UK national, easiest way to verify right to work in the UK is by seeing their passport.

• • If the employee is an EU national, they no longer have the automatic right to work in the UK. Instead, they will need to prove their right to work through either the EU Settlement Scheme via the online checking service or a visa.

• • Anyone else will need a visa and remember to schedule follow up checks if the visa is time limited.

6. Verify any professional qualifications needed

• • KCSIE states that schools must verify professional qualifications, as appropriate.

• • For teaching staff, this will involve using the Teaching Regulation Agency’s (TRA) Employer Access Service to verify award of QTS and the completion of induction if the applicant is not going to be undertaking this at your school.

7. Ensure that the candidate is not prohibited from undertaking teaching, childcare or management work where relevant

Teaching Work

 It is defined for this purpose as carrying out the following unsupervised activities:

• •  planning and preparing lessons and courses for pupils

• • delivering lessons to pupils, including online or distance learning

• • assessing the development, progress and attainment of pupils

• • reporting on the development, progress and attainment of pupils

Many schools will undertake this check for certain positions including HLTAs where they know the role will involve teaching work. However, for other TAs/LSAs, or even for other positions such as volunteers, you may not consider it necessary since you do not envisage the individual will be undertaking unsupervised teaching work.

However, this can leave a loophole where someone prohibited from teaching (and for whom a check has not been carried out) gradually starts to undertake teaching work or works in some other capacity in a school classroom. Therefore, you may wish to consider undertaking this check on all classroom staff, including volunteers, to avoid any future issues.

This is something we understand Ofsted are also raising with some of our clients.

Childcare Work

All schools providing childcare must ensure that appropriate checks are carried out to ensure that employees are not disqualified from working in these settings under the 2018 Childcare Disqualification Regulations.

• •  Individuals working with children aged 5 and under, including reception classes

• • Individuals working in wraparound care for children up to the age of 8, such as breakfast clubs and afterschool care

• • Individuals directly concerned with the management of such provision

Management Work

Independent schools, including academies and free schools, must check that a person taking up a management position is not subject to a section 128 direction made by the Secretary of State.

• •  There is no exhaustive list of roles that might be regarded as “management” for this purpose.

• • The DfE’s view is that roles involving, or very likely to involve, management of a school include headteachers, principals, deputy/assistant headteachers, governors and trustees. NB: The individual’s job title is not the determining factor and whether other individuals such as teachers with additional responsibilities could be considered to be “taking part in management” depends on the facts of the case.

8. Obtain references

• •  The purpose of seeking references is to allow employers to obtain factual information to support appointment decisions. Unlike the commercial sector, KCSIE states that schools should obtain references before interview. This allows any concerns raised to be explored further with the referee and taken up with the candidate at interview.

• • At least two references need to be obtained (one from the current employer), with these references being closely scrutinised. Schools should secure a reference from the relevant employer from the last time the applicant worked with children (if not currently working with children).

• • References should ask whether the referee is satisfied with the applicant’s suitability to work with children and should allow for the facts of any substantiated safeguarding allegations to be included. “Substantiated” only.

• • Do not accept open references e.g. “to whom it may concern”.

• • Ensure references are completed by a senior person with appropriate authority. e.g. Headteacher.

• • Take up an any discrepancies with the candidate at interview.

• • In the offer letter, make the offer subject to references which the school considers to be “satisfactory”. Subjective.

All the above must be recorded on the school’s SCR.

What Should Schools Do About Gaps in Their Safer Recruitment/ Pre-employment Checks for Current Staff? 

We are often asked this question when a new member of the HR Team joins the school and undertakes an audit of previous pre-employment checks. The answer will depend on the type of check not undertaken.
 

Examples:

1. Missing evidence of qualifications

• • You could simply ask the employee to provide evidence of this

2. Missing references

• • This could be tricky if the employee has been employed for some time. Decision must be based on the individual circumstances.

3. Right to work checks

• • There are criminal and civil penalties for not undertaking these checks prior to employment starting so it must be rectified immediately.

Judicium can provide a Declaration template for HR Advisory clients. If you do not have one already, please get in touch and we can arrange a copy to be sent. If you would like to discuss access to our templates or more HR and Employment advice regarding safer recruitment, please let me know and we would be happy to help.

KCSIE - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1021914/KCSIE_2021_September_guidance.pdf

.GOV “How to prove and verify someone's identity” - https://www.gov.uk/government/publications/identity-proofing-and-verification-of-an-individual

Access to work - https://www.gov.uk/access-to-work

Home Office Guidance re right to work checks: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide 

If you require any support in any of these steps or would like to talk to someone surrounding some support for your school, please do not hesitate to call us on 0345 548 7000 or email enquiries@judicium.com.

You can also find details regarding Judicium's HR Advisory service here.

If you’d like to review Judicium’s forthcoming sofa sessions for the term, please click here