Could teacher suspensions open schools up to legal claims?

School suspensions

The decision by schools to take action against staff amid confusion over child protection rules could potentially expose them to legal claims, according to experts.

The BBC has reported that around 300 school staff who live with someone that has a conviction for a violent or sexual crime have been suspended.

This is following guidelines issued last year by the Department for Education on rules that bar not just those who have been cautioned for certain offences from working with children, but those who share a house with them.

This is known as “disqualification by association” and – although the legislation itself has been in place since 2009 – the launch of the new guidelines alerted many schools to the fact the regulations covered schools as well as childminders and nurseries.

Historical cases have highlighted the difficulty in dismissing school employees based on their association with those with criminal convictions.

For instance, the case of H v X Primary School in 2012 found that a teaching assistant had been unfairly dismissed following her son’s arrest in relation to a sexual relationship with an underage girl.

XpertHR employment law editor Stephen Simpson said: “These cases can be very difficult for HR professionals. On the one hand, teachers who are subject to action will insist that they should not be punished if they themselves have done nothing wrong. On the other hand, schools will argue that they must err on the side of caution when it comes to children’s welfare.

“Schools that are considering action against an employee on the basis that a relative or associate has been convicted of a serious offence need to look at all the surrounding circumstances. For example, is there is a risk that the school’s reputation could suffer? What are the potential safety risks to the children? Does the teacher have a good previous record? Has the teacher followed the school’s disclosure protocols?”

The Government’s advice suggests that the rules cover anyone providing education or childcare for under-fives, or care for under-eights, which would also cover after-school clubs.

It urges schools to “use their own judgement” in how they interpret the rules, but because the guidance is so unclear, a number of schools have erred on the side of caution and suspended staff, including teaching assistants and lunchtime supervisors.

Surinder Dhillon, head of school legal services at law firm Irwin Mitchell said: “The provisions allow schools to make further enquires and consider whether the information disclosed about a person who lives or works in the same household is of such a nature that it could affect the appointment of an individual ‘by association’.

“It is a complex assessment to make and needs careful consideration and advice as the overriding objective has to be child protection and safeguarding.”

Many of the staff who have been suspended have applied for waivers from school inspectorate Ofsted, but may not be able to return to work for a number of weeks or months until the applications have been processed.

Russell Hobby, general secretary of trade union NAHT, claimed the regulations were “not yet in a workable state” and urged the Government to make the guidance more effective.

He added: “They will prevent good and trustworthy staff from doing their jobs and wrap schools up in unnecessary red tape, distracting them from real safeguarding issues and the hard work of raising standards.”

10 Responses to Could teacher suspensions open schools up to legal claims?

  1. Avatar
    Farweasel 21 Jan 2015 at 4:57 pm #

    What sort of society are we becoming?

    I thought reprisals against a transgresssor’s family was a feature of Hitler’s Third Reich and Satlin’s Soviety Union, not the UK.

    More immediately, its a straight forward breach of Human Rights.
    Any employer who relies on that guidance to underpin a SOSR dismissal had better budget for horrendous costs. It won’t just be the compensatory award, the legal tab will be astronomic. The fact most schools are an emination of the state will hurt rather than help them if and when it ends up in ECHR.

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    Dr GH 21 Jan 2015 at 8:34 pm #

    This is a very ill thought through application of existing legislation into a setting that it was never designed to apply. It is clear that “disqualification by association” can be justified in a childcare situation where there is the possibility of the children to come into contact with an offender, for example home-based care. However, it is hard to envisage a situation where this is a serious risk within a properly managed educational setting such as a Local Authority school. Conversely, it has the potential to cause wider social harm in unintended ways.

    Consider the following scenario: a female Year 1 teacher of many years standing in an Infant and Nursery School. She doesn’t actively participate in Early Years provision, or help with Later Years childcare provision, but is obviously in contact with all the children in the school at some level. Her husband accepted a Police caution for a sexual offence a number of years ago – this caution was accepted as a “least worst” option to spare the publicity of a trial etc. Since then the couple have worked hard to keep the marriage together and the school head teacher is well aware of the situation, supporting her member of staff whilst ensuring sufficient safeguarding is in place.

    In this case, what would be the result of applying the recent guidance?

    Scenario 1 : DfE/LA decides that all staff in an infant & nursery school are covered. Teacher has to declare association with a barred person. Teacher is suspended pending application for a waiver from OFSTED. What waiver is applied for? The teacher is not employed in any of the childcare settings covered by the legislation – do OFTSED purely provide some kind of “permission to work” in this circumstance?

    In addition, school staff are naturally curious about the reason for the suspension – they would assume/surmise a safeguarding issue, causing rumours and maybe worse. Even if some kind of waiver was provided by OFSTED and the teacher returned to work, the fallout from the period of suspension would be poisonous.

    Scenario 2 : DfE/LA decides that all staff in an infant & nursery school are covered. Teacher decides that she cannot risk her job over this and asks the husband leaves the household so that she does not have to declare an association with a barred person. The marriage is irreparably damaged – in this case the teacher has had to choose between her marriage and her job through no fault of her own. In addition, the risk of the husband re-offending must be regarded as higher if he is forced to live alone following the breakdown of a supportive relationship.

    The guidance provided by Norfolk makes the interesting point that when the legislation regarding childcare disqualification was initially enacted, it specifically excluded cautions accepted prior the introduction of the legislation:

    “Please note if an employee declares that they have accepted a relevant caution prior to 6 April 2007 they will not be deemed to be disqualified. This is because the relevant provisions in the Childcare Act 2006 came into force on this date and it was deemed unfair to bring in a provision which would have retrospective effect for those who had voluntarily accepted a caution and were therefore unaware of the impact. Unfortunately this will not change to take into account that the schools workforce were unaware until 2014″

    This whole guidance should be re-evaluated to determine if it really adds to the overall safeguarding of children. If the DfE and OFSTED still wish to apply this level of disclosure within schools, it should be introduced much more sensitively. At a minimum:

    1) Be clear on the settings to which the guidance applies – Childcare or Education
    2) Be clear on the OFSTED waivers required, the rationale behind these, with clarity on how they would be granted
    3) Don’t require immediate suspension of staff who declare an association with a barred person – wait until OFSTED have decided that waiver would not be provided, with a rationale, before suspending/terminating employment.
    4) Make cautions accepted before Oct 2014 not a reason for disqualification by association as they were accepted without full knowledge of the consequences

    The wider social consequences of enforcing this guidance within schools needs to be properly thought through. Safeguarding is already taken very seriously within our schools, all across the age range. You would hope that no blameless teacher is forced to choose between her job and her marriage.

  3. Avatar
    Sophie 21 Jan 2015 at 11:55 pm #

    I am a teacher with the threat of suspension. The form I completed for my school asked for personal details pertaining to the alleged sexual abuse of my daughter. I have been forced into revealing a private matter to my head teacher and business manager who have informed HR who in turn have informed the safeguarding children department. So now, because I protected my child I face suspension. The perpetrator is no longer a member of my family let alone living with me.
    I work part time through choice and cover classes on a supply basis in school. I am likely to be paid my salary but not my regular supply. Who is going to reimburse me for loss of income let alone compensate me for the personal grief this has caused and the opening of old wounds and memories

  4. Avatar
    Ellie Smith 22 Jan 2015 at 2:03 pm #

    I am currently one of the teachers suspended! I have been for 5 weeks now. My husband has a conviction for abh which happened 15 years ago before we met (basically he punched someone who was cheating with my husband then girl friend) he left some bruises so hence the adh as the person pressed charges. Anyway he cleared a CRB check when he started maintenance work for our local council within schools and child care settings when children are there (the same one who suspended me) he is still allowed to work but I can not and need a waiver to continue. How is this safeguarding children? It was a mistake he made 15 years ago when he was young. I’ve been teaching 10 years and it’s never been an issue. I was suspended instantly. My poor class have no idea when and if I’ll be back. It’s impacting on their learning.

    • Avatar
      Ellie Smith 22 Jan 2015 at 2:05 pm #

      This isn’t my real name as I’m bound by confidentiality due to my suspension.

  5. Avatar
    AM 22 Jan 2015 at 2:05 pm #

    A case I am aware of is that a teacher has been suspended because her partner committed GBH >10 years ago. Surely this can’t be right? Rehabilitation of offenders act deems this a “spent” conviction so why should it have to be declared and the consequences suffered a second time?

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    Gloriadewife 12 Feb 2015 at 9:43 pm #

    My husband did something 30 years ago when he was a kid. Because he received a conditional discharge 8 yrs ago for that same offence (having not been punished at the time) I was suspended. It happened 21 years before we met!
    I was off for 2 weeks and now will have to declare this to any future schools I want to apply to. How am I not a victim in this? 20 years of blameless teaching gone. And yet in my playground I can point out recently released violent offenders who come to pick up their children. Are we really protecting children with this ill thought out nonsense?

  7. Avatar
    Pendle Bill 13 Feb 2015 at 10:50 am #

    I took this case to our local MP, having first written to him and received an unsatisfactory reply in which he just “toed the party line”. The problem is that people, even MPs, see the words “child safety” and they just rubber-stamp legislation such as this without going to the trouble of thinking it all through. When I spoke to our MP face to face he admitted as much, and after hearing my objections to the legislation and reading the details of my friend’s case, he agreed to take the matter up with those empowered to deal with such things. I asked him to keep me informed, and I await his response. Meanwhile, my excellent-teacher friend sits at home. Grrr!

    • Avatar
      Anna K 7 Mar 2015 at 11:19 pm #

      Hi I am also currently suspended after 17 years of working in my school.I am so pleased you took it to the local MP I am going to do the same.My husband was given a police caution for a mild case of domestic violence against myself although he was ill it should never of happened and I thought I did the right thing by reporting it to the police to safeguard myself and my children.Now I wish I never had reported it, as it has affected my job which I love.Caused so much upset,hurt,stress and anger which we have tried so hard to forget.Now had to go back to the police to gather evidence to send to Ofsted.Spoke to the police officer who has been amazing through the whole process and even she is looking into the matter as she is now concerned that because of this legislation people will not report matters to the police.Therefore how is that safeguarding.I will never report anything to the police again which I feel is totally wrong but what choice will people have if it effects your work.Very sad and very stressful

      • Avatar
        Pendle Bill 11 Mar 2015 at 8:19 am #

        I am sorry to hear of your plight, particularly as I am told that in February the legislation was “adjusted” and that now there is no reason why you should still be suspended……..not that there ever was! Do hang on in there and do agitate with your local MP to get this damaging and dangerous piece of crap legislation removed from our statute books forthwith.