Safeguarding Children in Education and Safer Recruitment in Education came into force in January 2007. Jenni Whitehead looks at some of the most common confusions expressed by readers in the year since its publication
Over the last few months I have received a series of emailed questions that suggest people are still finding some aspects of the guidance confusing and I thought it would be useful to share the most common questions that I am receiving. I hope that by doing so I will show readers that they are not alone in their confusion! (I also hope to address some of the questions.)
Do we have to check all existing staff?
The guidance states that schools, FE colleges or local authorities are not required to ask existing staff, in post, who were not previously eligible (including those recruited before the establishment of the CRB) for criminal background checks to apply for a CRB disclosure, unless:
- they have concerns about the person’s suitability to work with children; or
- an individual moves to work that involves greater contact with children and their previous work did not require a CRB enhanced disclosure.
An exception to this is where the person is from overseas (see ‘Staff from overseas?’ below). However, a number of local authorities have decided that all staff should now be checked, which means that many schools are being expected by their local children’s safeguarding board to carry out retrospective checks on all existing staff. The argument for going further than the guidance requires is that there are a large number of people working in schools who have never been checked and it seems nonsensical to insist on checking one group of staff while ignoring another group. Arguments against retrospective checks for all staff are the cost of the checks and a reluctance to go beyond the requirement of the guidance.
Do we have to check staff who have moved from another school and can show us a recent CRB disclosure check?
This is the area that is probably causing the most confusion! According to the guidance, it is not necessary to carry out a new CRB disclosure check for staff who move from one school to another or from one local authority to another or from one FE college to another. A new CRB disclosure is only required if an individual has not worked in:
- a school in a post that brought him or her into regular contact with children or any post since 12 May 2006; or
- an FE college within the three months before his or her appointment, and the new appointment will be one providing education and regularly caring for, training, or being in sole charge of children or young people under the age of 18.
However, employers are reminded that they must ensure that all the other recommended and mandatory pre-recruitment checks are carried out, including List 99. A number of education departments have decided to carry out CRB disclosure checks as opposed to separate List 99 checks, the reason being that an enhanced disclosure check includes a List 99 check. For this reason some education departments will hold policies that a CRB check is needed in every case where a person takes up a new role. It is necessary to carry out a new CRB disclosure check if the applicant, while having worked in a school before, is now taking on a role that brings them into direct contact with children and such contact was not part of their previous role. Example 1: A Key Stage 1 teacher moving from one school to another to the same role, who has been checked previously and has been in continuous employment for the last three months does not need a new check. Example 2: A regular volunteer who has been checked previously but then moves into paid employment as a support assistant will need to be checked. This is because as a volunteer they would not be expected to work by themselves with children and are not expected to carry responsibility for children’s welfare.
Agencies providing supply teachers to schools and colleges must follow this guidance and check all eligible staff. Schools and colleges must check with the agency that appropriate checks have been carried out and obtain written confirmation of this. Under normal circumstances the agency does not have to show an individual’s CRB disclosure to the school, However, supply agencies must show the school the disclosure form if it contains information of relevance. The school is then in a position to make an informed choice as to whether to employ the person. If the CRB disclosure has not been received yet by the agency, the school must require the agency to notify it of the content as soon as it is received.
Can a person start work pending the return of the CRB disclosure check?
According to the guidance, schools and FE colleges can use their discretion as to whether to let a person start work before the return of the CRB disclosure as long as the disclosure form has been submitted. Minefield! I do not understand this stance and I can assure any employer that it is much harder to dismiss once a person has started actually working. I have known schools let people start work pending the CRB return only to find later that had they had the information on the disclosure in front of them at the time of appointment they would not have gone forward with it. Example: A school appointed a teacher from a neighbouring authority and let them start work before the return of the CRB disclosure. The school later discovered that the person left the previous school while under investigation. (The previous employers omitted to put this in the reference.) the investigation was still with the police at the point of appointment. The school then had to suspend the member of staff until the investigation was completed. Yes, they did have in their standard offer of appointment letter ‘This offer is subject to…’ However, once you have let the person take up the appointment it is longer an offer. Costly! If you decide to use discretion and start someone pending the CRB check, the guidance advises that the individual is appropriately supervised; and that all other checks, including List 99, have been completed. Information on checking List 99 pending a CRB check is available by calling 01325 392101. ‘Appropriate supervision’ is discussed in the guidance and basically it depends on: the level of experience the person has, the nature of their duties and the level of responsibility they will carry. For all staff without completed CRB disclosures it should be made clear that they are subject to this additional supervision. The nature of the supervision should be specified and the roles of staff in undertaking the supervision spelled out. The arrangements should be reviewed regularly, at least every two weeks until the CRB disclosure is received. Where a CRB disclosure indicates cause for concern for agency or directly employed staff, the member of staff must immediately be withdrawn from the school pending further enquiries.
Staff from overseas?
The guidance states that newly appointed staff who have lived outside the United Kingdom must undergo the same checks as all other staff, including a CRB check. Bear in mind the statement published by the CRB that they can not access criminal records of overseas applicants. In addition, employers must make such further checks as they consider appropriate due to the person having lived outside the United Kingdom. These further checks must be completed prior to an individual starting work. In addition any member of staff appointed since March 2002, who had lived outside the United Kingdom must undergo CRB checking where this has not been done, unless the individual had within the three months before his or her appointment worked in:
- a school in a post which brought him or her into regular contact with children or any post they were appointed to since May 2006; or
- an FE college in a post providing education and regularly caring for, training, or being in sole charge of children or young people under the age of 18.
This action will bring the checks, including CRB disclosures, for this group of staff in line with those completed on teachers who have never lived or worked abroad, and recruited into the workforce since March 2002. Schools and colleges should have completed any checks that are outstanding for this group of staff by July 2007. If, in the opinion of the local authority, school, or FE college, the CRB disclosure is unlikely to provide sufficient information, then, depending on how long the individual has been in the UK, other checks, including obtaining certificates of good conduct from relevant embassies or police forces, as appropriate, must be completed prior to the individual starting work or volunteering activity. The problem with such certificates is that the level of information contained in them varies from country to country. Further information about the criminal record information which may be obtained from overseas police forces and countries, is available from the CRB (www.crb.gov.uk). If schools intend to employ people from countries where criminal record checks cannot be made, they need to be particularly careful in taking up references. Additional references should be sought and followed up by phone call and letter.
Last but not least
Remember – the recent media criticisms of recruitment practice in school was about record keeping. The guidance offers a useful template for schools, colleges and services, to record the checks that have been carried out. Record keeping must be completed in respect of all staff employed and if a particular check has not been completed it is important to record this fact and the reason for it.
More about CRB checks and overseas applicants
The Criminal Records Bureau has published a statement about applicants from overseas:
- ‘The CRB cannot currently access overseas criminal records or other relevant information as part of its disclosure service. If you are to recruit people from overseas and wish to check their overseas criminal record, a CRB check may not provide a complete picture of their criminal record that may or may not exist.’
The statement includes guidance on obtaining fuller information about overseas applicants from a number of listed countries. If the country you need to contact is not included in the list employers are advised to contact the country’s representative in this country. Contact details can be found on the Foreign and Commonwealth website www.fco.gov.uk or tel: 020 7008 1500.
The CRB website also points out that it is not involved in the processing of applications made by individuals to overseas authorities and therefore will not be responsible for the contents or the length of time taken for information to be returned. The information provided by overseas authorities may be in the language of the country to which the application was made. It may therefore be necessary for customers to have this information translated. The CRB does not provide information about translation issues