Safeguarding and Employment Law: Low-level Concerns (that do not meet the harm threshold)

This blog is based on Judicium’s Safeguarding ‘Sofa Session’ from the 24th of January, with our resident experts Helen King and Jenny Salero. This session focused on what low-level concerns are, how to record low-level concerns, how to build a culture around low-level concerns with staff and what role HR plays in low-level concerns.

What are Low-level Concerns?

KCSIE states that as part of their whole school approach to safeguarding they should promote an open and transparent culture in which all concerns about all adults working in or on behalf of the school or college e.g., supply teachers, volunteers and contractors, are dealt with promptly and appropriately.

It is any concern – no matter how small, and even if no more than causing a sense of unease or a ‘nagging doubt’- that an adult working in or on behalf of the school or college may have acted in a way that:

• Is inconsistent with the staff code of conduct, including inappropriate conduct outside of work, and
• Does not meet the harm threshold or is otherwise not serious enough to consider a referral to the LADO.

Some examples within KCSIE include but are not limited to:

• Being overfriendly with children.
• Having favourites.
• Taking photographs of children on their mobile phone, contrary to school policy.
• Engaging with a child on a one-to-one basis in a secluded area or behind a closed door.
• Humiliating children.

Low-level concerns can arise from a variety of sources, e.g., a disclosure from a child, vetting checks or member of staff.

During our safeguarding service audits, and we often find many schools have either not had any low-level concerns reported or had very few. Whilst this could point to an excellent staff culture in the school, given the definition of a low-level concern is any concern that is inconsistent with the staff code of conduct and does not meet the harm threshold, it seems unlikely so few incidents have occurred.

While visiting schools, we speak to staff and ask about what low-level concerns are. Many have not heard of this in relation to adults and automatically think about concerns about children. Again, given this is the term used in the guidance we will often ask schools to consider revisiting this topic with staff, explaining the criteria for LLC and the importance of reporting it.

Having a clear overview of this within your own Staff Code of Conduct, is not only outlined within KCSIE, but will also act as a guide for staff and managers if concerns do arise. Although policies are not the most exciting aspect of HR, they are crucial when there is a problem!

Building a Culture around Low-level Concerns 

KCSIE states that it’s important to have this open and transparent culture.

For context, much of the guidance in KCSIE was underpinned by some work by Farrer and Co in this field. They drew on research by others such as Marcus Erooga who reviewed 20 serious case reviews (now known as child safeguarding practice reviews) between 2010 and 2016 and found several themes:

• In 85% of the cases there was a failure of staff and management to understand and implement their safeguarding policies, including around sharing concerns. Hence why policies are so important.
• In 14 of the 20 cases, it was emphasised the importance of staff and management understanding the dynamics of organisational abuse.
• A factor in just over half of the cases was the significance of organisational culture to minimise risk.

Some patterns of behaviour were drawn from the research. It showed that one of the methods for commencing the abuse included the erosion of boundaries, Erooga referred to it as the ‘slippery slope’ of boundary violations towards abuse. The research emphasised that this didn’t just relate to safeguarding boundaries but boundaries in every respect being adhered to.  This is why adhering to the Staff Code of Conduct and breaches against this are explicitly referred to in this guidance.

Some adults wrongly believe that they can accurately judge whether someone is an offender. Organisations need to emphasise the need to understand that there is no one profile to an abuser and the focus should be on specific behaviours rather than their personality as a whole.

Top Tip: When establishing a culture, it is important that training focuses on behaviour and challenges the view that people can identify abusers easily. As such, staff should be briefed on the staff code of conduct and its expectations, and leaders must address any attempt to bypass policies and procedures, irrespective of the person’s status.

Staff should also be trained on specific behaviour to be aware of and consider scenario training so they can understand real life examples. When thinking about culture and training around this you need to consider:

1. Do we have a culture of openness and transparency?
2. Do all staff buy into our culture and how do we know?
3. Does the culture of the staff room reflect the culture we have outlined?

If you would like us to deliver training in this area and with your staff, please get in contact with the team.

As mentioned in the session, generally speaking, HR should not have a huge involvement in day-to-day low levels concerns, because they are just that – low level.

However, both SLT and HR Teams play a crucial role in developing a culture of openness and transparency. Think about the message so many of us have heard on public transport, ‘see it, say it, sort it’ – that is the approach schools should take regarding low level concerns.

Building a culture around low level concerns will not happen overnight, but happens because of several things including:

• Policies being kept up to date and ensuring these are visible and accessible to all staff.
• Reminding staff of what could amount to a low-level concern regularly.
  • Part of Induction process? Inset Days to review Code of Conduct? Regular reminders? Posters in key staff areas?
• Ensure staff that managers and those involved with low-level concerns have regular training and know what to do when a concern is reported.
• Take action to address an issue when it is raised.
• Communicate any learning with wider staff, if applicable.

All these actions combined, which all staff are responsible for supporting, will help foster good culture.

Scenarios

Scenario A

A member of staff has come to watch the school play. During the performance, she takes photographs of the students. It has been outlined before the performance that photographs would be taken by the official photographer and available to all those watching it and so the audience was asked to refrain from taking photographs themselves. In addition, the Staff Code of Conduct states that staff are not allowed to take photos on their personal devices.

• Safeguarding view: It should be reported to the appropriate person in the school. This may be the DSL, the Headteacher, or it may be a ‘values champion.’ Irrespective of who it is reported to, the Headteacher holds the final decision-making powers and should be made aware of the report. This might be reported by the staff member themselves as staff are encouraged to refer concerns themselves. Irrespective of how this has come to the attention of the appropriate adult in the school, it would need to be responded to. This would likely be followed up by a conversation with that member of staff.

• HR view: This matter should be discussed with the member of staff and ideally followed up with an email or letter to confirm what was discussed. This is informal guidance, so there is no need for any type of process, but this guidance should make clear the expectations moving forward.

Scenario B

The member of staff from scenario A along with three other members of staff have been seen taking photographs on their personal devices at the school sports day. This has included photos of events and students in the crowd who have been cheering on their peers.

• Safeguarding view: Again, it might be reported through a variety of means or the DSL/ Headteacher or values champion may have witnessed it. It’s likely that the members of staff would be spoken to by the DSL/ Headteacher and reminded of the Staff Code of Conduct. It might also suggest training is needed. As it is a repeated low-level concern, the school should consider whether it’s necessary to go back to the Staff Code of Conduct and remind staff of expectations around personal device use.

• HR view: In this instance, the same approach taken in Scenario A should apply to the staff who are involved in these concerns for the first time. However, HR may be involved in discussions around the colleague who has done this for a second time. Will further guidance be issued or should more formal action be considered in relation to the failure to follow a management instruction?

NB: Any decision on how to proceed should be based on the relevant circumstances and facts surrounding the case. There is not usually a one size fits all approach! 

Scenario C

A member of staff has shouted at a child in front of the whole school during an assembly. They have suggested that the child is ‘stupid’ and ‘doesn’t understand the simplest instruction’. The Staff Code of Conduct stipulates members of staff should not belittle or humiliate students. When challenged by another member of staff afterwards, the member of staff who shouted at the child, swore at the staff member, and verbally abused them.

• Safeguarding view: It’s important to check-in on the child who was humiliated. This should be done by the most appropriate member of staff, and likely one who has a good relationship with the child. A meeting should be had with the member of staff where the antecedents to the incident were explored, and also perhaps to check the wellbeing of the member of staff. It is possible that training is required to reiterate the school culture in relation to this and additional support might be put in place for the child and the member of staff.

• HR view: In these circumstances the concerns raised are more serious and relate to both the student and the member of staff. An initial fact find should be undertaken to try to establish whether there is a concern, i.e. witnesses, what was said, or was it a misunderstanding, etc? If there appears to be a concern, a more formal disciplinary process could be considered in which HR should support SLT.

How to Record Low-level Concerns

The guidance in KCSIE states that it is crucial that all low-level concerns are shared responsibility with the right person and recorded and dealt with appropriately. However, the guidance is not too prescriptive in this respect. It simply states that records should:

• Be in writing.
• Include details of the concern.
• Have the context in which the concern arose.
• State the action taken.
• Include the name of the individual sharing their concerns should also be noted (unless they wish to remain anonymous, which should be respected as far as possible).

It is up to the school or college to decide where these records are kept, but they must be kept confidential, held securely and comply with GDPR rules.

It is for schools and colleges to decide how long they retain such information, but it is recommended that it is retained at least until the individual leaves their employment.

Top Tip: You might want to anonymise the concern to still allow for tracking for trends across staff members.

Records should be reviewed so that potential patterns of behaviour can be identified. Where patterns are identified, the school should decide on the best course of action. This might be through disciplinary procedures, a review with the LADO regarding whether the culmination of behaviour now meets the harm threshold or whether cultural issues across the school suggest a revision of policies or extra training is required.

Part of our safeguarding service focuses on low-level concerns and best practice for recording incidents.

Any low level concerns (whether individual or repeated) should not be shared as a matter of course during a reference and KCSIE is clear about this. If you are asked specific questions on a reference request form in relation to these types of topics seek further advice from your HR provider.

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