Enhanced DBS checks allow schools to see the criminal records of those applying for posts. Since said posts are exempt from the Rehabilitation of Offenders Act 1974, any spent convictions and cautions may also be listed. But what should a school do when an individual is investigated, charged or convicted of a criminal offence during their employment, and what are the risks?
Employment contracts should require employees to inform you of any investigation, caution or conviction. Following notification, suspension may be appropriate in the majority of cases – especially if there are serious safeguarding concerns, or the presence of the individual could interfere with any investigation. However, this shouldn’t necessarily be an automatic process. Employment Tribunals have recently been critical of employers that have failed to consider all the alternatives carefully. Always make sure you record your decision.
Any suspension should be on normal pay and placed under constant review. Criminal investigations can often take months, resulting in a prolonged period of paid suspension. Your duty of care will continues during any suspension, so make sure you always have a point of contact for the employee.
If the individual under investigation is subject to police bail conditions, clarify what those conditions are, as they may prevent the employee from attending school or being near children. This may also allow you to stop their pay, but seek legal advice before you decide to take this action.
Where an employee is subject to criminal investigation or proceedings, there’s a danger that the matter may enter the public domain. You may want to consider making a public statement, but be careful not to breach confidentiality or any reporting restrictions for teachers preventing disclosure placed on the case under The Education Act 2002, until after charges are made.
After any caution, conviction or even if the case is dropped by the police, you may feel it is appropriate to carry out an internal investigation. Even if an individual is acquitted in court, you could still take action up to and including dismissal if the circumstances warrant it. It should be remembered that the burden of proof is much higher in a criminal proceeding compared to an internal disciplinary.
If an employee leaves your employment, either through resignation or dismissal, you’ll be required to consider a referral to DBS (where a child has been harmed or placed at risk of being harmed) and/or the Teaching Regulation Agency (in cases involving serious misconduct by teachers). Make sure you inform the individuals that you’ll be doing this when they leave your employment.
Eleanor Drabble is an HR consultant and Ian Deakin an associate at the law firm Browne Jacobson