Disqualification and disqualification by association

This is one of the employment-related ‘hot topics’ which Ofsted are currently interested in. You may wish to amend your single central records to include a section which allows you to demonstrate regular checks are being carried out to identify whether any teachers are disqualified.

DfE ‘Keeping Children Safe in Education’

Just before half term, the Department of Education released supplementary advice to the ‘Keeping Children Safe’ statutory guidance from the DfE. This details a new requirement for childcare disqualification checks to be carried out on relevant staff working in schools and academies. This guidance builds on the Childcare (Disqualification) Regulations 2009, which came about following the Education Act 2006. It is not clear why the DfE have only just released guidance on this issue; however, this may have implications for some of your staff and it is highly likely that Ofsted will be interested in whether you have addressed this issue.

Who these provisions apply to?

The rules in relation to disqualification apply to the following: -

• Staff who work in early years provisions (including teachers and support staff working in school nursery and reception classes)
• Staff working in later years provision for children who have no attained the age of 8, including services outside the school day, such as breakfast clubs and after school clubs
• Staff who are directly concerned in the management of such early or later years provision.

We would therefore advise the following: -

• For Infant Schools and Nursery Schools – You would need to consider all staff.
• For primary/Junior schools – while you will have children older than the age of 8, we would recommend that all staff be considered as it would be difficult to ensure that certain staff would only exclusively work with children over the age of 8.
• For Secondary Schools – you would only need to consider checks on those staff who would work in any services provided at which under 8s may attend (including managers) for example any breakfast clubs or after school clubs.

Who is disqualified?

An employee will be disqualified if: -

• They have been cautioned for, or convicted of certain violent or sexual offences against adults and any offences against children
• They are the subject of an Order, direction or similar in respect of childcare, including orders made in respect of their own children
• They have had registration refused or cancelled in relation to childcare of children’s homes or have been disqualified from private fostering

However, in addition to the above, an employee will also be disqualified if they live in the same household as anyone to whom one of the above three criteria apply. It is accepted that they may not know this information; however, your staff are required to give a declaration “to the best of their knowledge”.

A full list of the relevant convictions and cautions which can lead to disqualification under criteria 1 above can be found at Section 5.1a of Ofsted’s Compliance, Investigation and Enforcement handbook, which is available from Ofsted’s website at www.ofsted.gov.uk/resources/ciehandbook.

What you should do now regarding your current staff

We advise our clients to ask all staff (including volunteers) to complete a declaration as soon as possible to confirm that they are not disqualified. We would also suggest that you provide your staff with the relevant extract from the Ofsted handbook for their reference, we can provide a template for both of these.

It is important that your staff return these as soon as possible, and we would recommend that they be asked to do so within one working week. If any staff fails to return the declaration form, steps may need to be taken to remove them from the school site until such time as the declaration form is returned. Clients are urged to contact us for further advice if a situation like this does arise.

When considering the completed declaration forms, if any of your employees declare that one or more of the above three criteria apply to them or anyone that they live with, contact us immediately and provide a copy of the employees’ declaration form so that we can advise on the next steps.

Anyone who is disqualified will need to be immediately removed from the school via suspension and you are required to notify Ofsted within 14 days of becoming aware of the situation. It is therefore important that you do not delay in contacting us.

This may ultimately lead to termination of employment; however, we can discuss this with clients on a case by case basis.

What you should do when making new appointments

All new appointments, which will include volunteers, must be required to complete the declaration form prior to carrying out any work for the School. DBS certificates should continue to be checked as usual. You may need to update any pre-employment checks procedure accordingly, if you have such a procedure in place. If you do not have any such written procedure, there is no need to take any action to implement one.

The sanctions of continuing to employee someone who you know to be disqualified

It is an offence for anyone to employ someone who they know is disqualified in this regard. This places a liability on Headteachers and Chair of Governors personally.

The maximum sanction that can be applied if an individual is convicted of knowingly employing someone who is disqualified is imprisonment up to 51 weeks and/or a fine not exceeding £5,000.

What your employee can do if they are disqualified

Disqualified employees can apply to Ofsted for a waiver and Ofsted have the ability to grant a full or partial waiver which may allow that individual to work in a relevant school setting.

However, from an employer’s point of view, you cannot allow disqualified employees to work in the school during any application process. The wording of the legislation clearly states that it is an offence to do so. It would therefore be for you to weigh up the various risks, and decide whether to dismiss any disqualified individual immediate upon becoming aware that they are disqualified, or whether to place them on suspension pending any application for a waiver from Ofsted. We can discuss your options with you on a case by case basis.

Clients can contact Judicium Education for further information and the relevant forms. Anyone not yet signed up to our service is invited to contact us at enquiries@judicium.com to discuss our service in more detail.