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An employee’s guide to safeguarding rules

In this article, I explore the additional employment-related obligations placed on schools, relating to their duty to keep children safe, and how these impact on their staff throughout the life cycle of employment. The aim of the article is to help employees of schools gain a better understanding of safeguarding in an employment law context. The first part of the article deals with schools’ specific responsibilities at the point of recruitment. The second part discusses schools’ additional obligations during employment and on termination of employment for a reason connected with safeguarding children.

Recruitment

Schools have onerous and complex vetting obligations when recruiting new staff, in addition to those that apply to any employer such as checking that a prospective employee has the right to work in the UK. Their aim is to deter people who might harm children from seeking employment, and to enable schools to identify unsuitable applicants.

Broadly speaking, the additional vetting obligations are the same irrespective of whether the person being recruited will be an employee, a worker (although not an agency worker) or self-employed. The obligations are similar, although not identical, in private and state sector schools. Additional and modified requirements apply to boarding schools, to early years settings (defined as until the first of September following a child’s fifth birthday) and to colleges.

Criminal records

Under the provisions of the Rehabilitation of Offenders Act 1974 (ROA), some convictions and cautions become ‘spent’ after a specified number of years. When a conviction or caution is spent, in many sectors of employment a person does not have to disclose it, and they must not be excluded from or prejudiced in employment as a result of it. A dismissal for having, or failing to disclose, a spent conviction is automatically unfair (section 4(3)(b) of ROA) although an employee must still meet the length of service requirement of 2 years in order to make a claim on this basis. Similar provisions apply in relation to spent cautions (Sch 2 section 3(5) of ROA).

However, the ROA does not apply to all convictions and cautions, nor does it apply to all occupations and workplaces. Schools are exempt from the ROA (Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Sch 1 Part 2). It is not therefore unlawful for schools to ask prospective staff about their criminal record — including spent convictions and cautions — or to refuse employment because of them.

Indeed, schools must take into account criminal records when recruiting and managing staff, so as to comply with the law. Under the provisions of section 175 of the Education Act 2002, Part 3 of the Education (Independent School Standards) Regulations 2014 and the Non-Maintained Special Schools (England) Regulations 2015, schools are legally required to safeguard and promote the welfare of children, and in doing so, to have regard to the relevant statutory guidance.

The key relevant statutory guidance is Keeping Children Safe in Education (KCSIE). KCSIE defines a child as someone under the age of 18, and it covers the management of safeguarding, the recruitment of staff, and the handling of allegations of abuse made against staff. It sets out the detail of the additional checks that schools are expected to do on prospective staff, and states that appointments should be conditional on satisfactory completion of the checks.

DBS

Where, and to the extent that, an employer such as a school is entitled to information about a person’s criminal record, it may ask the candidate for a criminal records check certificate from the Disclosure and Barring Scheme (DBS). There are 4 different levels of DBS checks.

A Basic check confirms whether the individual has any unspent convictions and conditional cautions (for example, a caution conditional on paying compensation to a victim). It is therefore available in situations where the ROA applies (and so it is generally not relevant to employment in a school). Unlike other DBS checks, an applicant can apply for it on their own account.

A Standard check covers spent and unspent convictions, cautions, reprimands and final warnings (cautions for young people) — therefore, it is only available where the employment is exempt from the ROA.

An Enhanced check covers what is included in a Standard check but also provides any information held by the police which is considered relevant to the applicant’s role.

An Enhanced with Barred List check is an Enhanced check plus verification of whether the applicant is on a list of people barred from doing the role applied for. The legislation concerning the barred list and the circumstances in which an individual will be barred is the Safeguarding Vulnerable Groups Act 2006 (SVG). There are two barred lists, one for working with children and the other for working with vulnerable adults. Barring information is only available for individuals who are going to undertake ‘regulated activity’.

Schedule 4 of the SVG defines ‘regulated activity’. Regulated activity includes:

● teaching, training, instructing, caring for or supervising children

● carrying out paid work or unsupervised unpaid work regularly in a school where there is an opportunity for contact with children, and

● engaging in health or personal care.

It is a criminal offence under the SVG for a person on the barred list to undertake regulated activity, and for a school to allow a barred person to do regulated activity.

Schools are expected to ensure that anyone working for them has an Enhanced DBS certificate (KCSIE). If the person is to undertake regulated activity, they must also have had a satisfactory Barred List check. However, because the definition of regulated activity is so wide, in practice most schools will insist that all their staff have an Enhanced DBS with Barred List certificate.

All DBS checks other than a Basic check have to be applied for by the employer; a candidate cannot apply on their own account. Evidence of the candidate’s identity is required to make the application. Once the check is done, the DBS certificate is sent to the candidate, who then shows the document to the employer. A DBS certificate has no official expiry date; at its discretion, an employer may require staff to repeat a DBS check. If an individual has signed up for the DBS Update service, the employer can check whether there have been any changes since the original DBS certificate was issued.

A person wanting to work in a school must therefore be prepared for enquiries to be made about their criminal record or any police concerns, and for the fact that employment is likely to be refused if there is anything dubious in their past. But what about where the candidate only has a very minor conviction or caution ?

Filtering scheme

Following the Court of Appeal’s decision in R (T) v Chief Constable of Greater Manchester 2013 EWCA Civ 25, the government amended the DBS scheme to introduce a system of filtering. This applies to ‘protected’ cautions and convictions, under the Rehabilitation of Offenders Act (Exceptions) Order 1975, as amended in 2013. The Court of Appeal held that the practice of disclosing all convictions and cautions, irrespective of the circumstances, was incompatible with the right to respect for private life under Article 8 of the European Convention on Human Rights. Effectively, since filtering was introduced, certain minor and historic convictions and cautions are no longer disclosed by a DBS check. For example , an adult conviction not on a list of non-filterable offences (such as those involving violence), where no custodial sentence resulted, and where the individual has no other offences, will not appear on a DBS check after 11 years.

An offence which is filtered does not have to be disclosed by an applicant, and benefits from similar protection under the ROA as spent offences. However, its existence may be disclosed as part of police intelligence provided in an Enhanced DBS check, and it can be taken into account by the DBS for the purpose of deciding if someone should be barred. Therefore, the best strategy for an applicant for employment in a school may be to be upfront about it. Schools do have a discretion to employ someone with minor or historic convictions or cautions, provided that the person is not on the barred list (assuming they will be doing ‘regulated activity’) and the other recruitment checks prove satisfactory.

The filtering scheme has been subject to several legal challenges. In 2019, during four appeals heard by the Supreme Court (In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (on the application of P, G and W) v SoS for the Home Department 2019 UKSC3), it was decided that the filtering scheme’s provisions in relation to multiple convictions, and in relation to cautions given to young offenders, are incompatible with Article 8. In other words, the court suggested that filtering should also apply in certain circumstances to people with multiple convictions and to recipients of cautions in their youth. From 28 November 2020, the filtering scheme is being amended to filter youth reprimands/cautions/warnings so they will no longer be disclosed. Adults and youth with several convictions will also no longer automatically have all their convictions disclosed- the filtering rules will instead be applied to each individual conviction ( The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 and The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020).

The DBS certificate only covers a person’s criminal record in the UK. Therefore, where a candidate has lived abroad, a school will require additional checks to be done, the exact nature of which depends on the country concerned and the particular circumstances.

Other recruitment checks

There are other recruitment checks that are required depending on the nature of the post. The Teachers’ Disciplinary (England) Regulations 2012 provide that teachers may be prohibited from teaching because of earlier professional misconduct; schools must check that a prospective teacher is not subject to a Prohibition Order by the DfE. For teachers who have worked in the European Economic Area (EEA), checks will also be made to establish whether any teacher sanction or restriction has been imposed by a regulatory body in the EEA.

A similar provision applies to staff taking up management posts in an independent school. The recruiting school must check that the candidate has not been prohibited from taking up such a post under section 128 of the Education and Skills Act 2008.

For applicants who will be working in, or managing childcare, a school must ensure that the individual is not disqualified from doing so under section 75 of the Childcare Act 2006. It is an offence under section 76 of the Act to employ a disqualified person unless the school did not know, and had no reasonable grounds for believing, that the person was disqualified. ‘Childcare’ includes all work with early years children, and before- and after-school care, and holiday care for children under 8 years old. There are various grounds for disqualification, which include such things as being on the Barred List for children, being cautioned, convicted or charged with certain offences, having had one’s own children taken into care and not being allowed to foster. A job candidate should be prepared to be questioned about this.

Prior to 2018, a person could be disqualified simply because of their association with someone who was disqualified, so schools would routinely ask their prospective staff about the criminal records of any members of their household. However the disqualification by association provisions now no longer apply to schools (Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement)(Amendment)Regulations 2018).

Schools are required when appointing new staff to check an appointee’s identity (KCSIE; EISSR 2014 sch 1 part 4).Given that evidence of identity must be provided for a DBS check anyway, this isn’t usually a problem. They must also obtain and check written information on a candidate’s previous employment history, which means a requirement to apply in writing is usual. Where appropriate they must verify an appointee’s qualifications (KCSIE; EISSR 2014 sch 1 part 4).

References

KCSIE states that a reference should always be obtained from a candidate’s current or most recent employer, and that references should be scrutinised. The requirement to obtain a reference from the current or most recent employer can pose a problem for candidates who left their previous employment on bad terms, or whose former employer will not give them a reference. Where someone working in a school is negotiating terms of departure from a working relationship that has soured, it is advisable to think about the future need for a reference, bearing in mind that employment tribunals do not have the power to order that a reference be provided. They should consider making it an explicit requirement in any settlement reached that a reference in agreed terms will be provided to a prospective employer.

Schools are however given a certain amount of discretion in deciding what constitutes an acceptable reference and how many references to get. For example, if a candidate can only supply a reference which states the dates of employment with a previous employer, a school may accept this if other references are also provided. KCSIE also suggests that references should be obtained prior to interview with a candidate; for obvious reasons, many candidates will not agree to this, so in practice schools do not usually insist on it.

Health check

Finally, schools have to check that an appointee is medically fit to do the job (Education (Health Standards) (England) Regulations 2003 and EISSR 2014 sch 1 part 4).However this is subject to the duties an employer has under the Equality Act 2010 (EqA) not to discriminate against, and to make reasonable adjustments for, a disabled person.

Section 60 of the EqA provides that an employer may not make enquiries about a job candidate’s health and disability before a job has been offered, whether that is a conditional or unconditional offer. KCSIE says, on the other hand, that ‘A job applicant can be asked relevant questions about disability and health in order to establish whether they have the physical and mental capacity for the specific role’, possibly referring to an exception contained in section 60 (6)(b) of the EqA. In practice, schools normally check medical fitness by asking an appointee to self-certify prior to taking up the post.

Record keeping

In addition to having to vet their staff, schools are required [see KCSIE; Regulations 12(7) and 24(7) and Schedule 2 to the School Staffing (England) Regulations 2009; Part 4 of the Schedule to the Education (Independent School Standards) Regulations 2014] to keep a Single Central Register (SCR) evidencing that the appropriate checks have been undertaken on each member of their staff. OFSTED inspectors will closely examine a school’s SCR during an inspection together with supporting evidence that the appropriate vetting has in fact been carried out.

School applicants and staff may have concerns that their personal data (some of which is clearly sensitive personal data or the equivalent, in relation to criminal records) is being kept by the school employer. Obviously, schools must comply with the GDPR/Data Protection Act 2018 in how they process personal data, for example by ensuring that appropriate security measures are in place and that data is only kept for a lawful and specified purpose. Extra legal safeguards apply where sensitive personal data and criminal records data is being processed. It should be noted that under section 124 of the Police Act 1997 it is a criminal offence to disclose without authorisation information in a DBS certificate.

KCSIE makes it clear that schools are not required to keep copies of staff DBS certificates (and that if they do, the certificates should not be kept for more than 6 months), though as part of the SCR they do have to record that the individual’s DBS check was done, when and what the outcome was. However, schools are directed to retain copies of identity documents, right to work and qualifications of their staff.

During employment

Additional employment-related obligations also apply to schools and their staff during employment.

Schools are expected to repeat safeguarding recruitment checks if they have concerns about the suitability of an existing member of staff to work with children, or if a staff member’s change of duties makes other checks necessary (for example, because the staff member will now work with early years children).

It should also be borne in mind that persons working in schools may be under extra contractual obligations during their employment, for example to report to the school if they are convicted of an offence, or if their children are taken into care. A failure to comply with such terms is likely to be a breach of contract which may entitle the employer to terminate the contract. In such circumstances, the dismissal would be potentially fair for conduct or for ‘some other substantial reason’ (‘SOSR’).

Training and management

Schools must ensure that all their staff read Part One of KCSIE and are trained on safeguarding as part of their induction. KCSIE Part One emphasises that safeguarding and promoting the welfare of children is the responsibility of all staff. The expectation therefore is not just that staff will not harm the children in their care, but also that they will identify and act on any concerns they have about a child. Schools are expected to train their staff on the indicators for child abuse and neglect, how to make referrals and what to do if a child discloses abuse or neglect. This includes situations where the concern is that another member of staff may pose a risk of harm to children, or where there is a concern about radicalisation (vulnerability to being drawn into terrorism).

Schools must also induct their staff on the policies and systems used within their school, including the role and identity of the school’s Designated Safeguarding Lead (DSL). The DSL is a senior member of staff from the school’s leadership team who has lead responsibility for child protection and safeguarding in the school. Schools are required to have whistleblowing procedures for concerns about the safeguarding practices within the school, and to comply with KCSIE’s provisions about the management of safeguarding within the school. The verification of these arrangements forms part of OFSTED inspections.

What happens if there is a concern about a child

Schools are expected to play a shared role in safeguarding children and in promoting their welfare, working with other agencies. If there is safeguarding concern about a pupil, it’s not the case that the matter is simply handed over to another agency to be dealt with. The guiding principle is what is in the best interests of the child. If there is a concern about a child, this should be reported to the school’s DSL, although KCSIE stresses that staff responsibility does not end just because a concern has been reported to the DSL.

A decision should be made about whether a referral is needed, depending on whether a child is suffering from harm or is likely to. If a referral is needed, the DSL or staff member should contact children’s social services and/or the police, depending on the situation. If a referral is made to children’s social services, a social worker is supposed to make a decision within one working day about the response needed. This could include emergency court action, working towards a child protection plan, identifying that a child is in need and what support needs to be provided, or a decision that no further action by social services is required. If no referral is deemed necessary, the school should provide any help needed (such as pastoral support) and monitor the situation, with a view to making a referral if concerns escalate.

Reporting of FGM

Under the provisions of section 5B of the Female Genital Mutilation Act 2003, teachers are legally obliged to notify the police if, in the course of their work, they discover that an act of FGM appears to have been carried out on a girl under the age of 18. A concern that FGM might be carried out should be dealt with in accordance with the school’s normal safeguarding processes.

Allegations made against staff

What do schools have to do if an allegation is made against a member of staff, or there is a concern that they may pose a risk of harm to children or not be suitable to work with children, including in relation to conduct not occuring at the school? This depends on the nature, context and seriousness of the allegation.

A senior staff member (but not the subject of the allegation) should immediately assess the allegation with the DSL and agree a course of action. This could involve contacting the police and/or social services, if there is evidence of a criminal offence or if the person poses an immediate risk to children. It could also mean obtaining further information and/or undertaking an investigation. It might be that other action is required, such as a dismissal process.

Key points are that allegations should be dealt with quickly and fairly, and that the decisions made and the reasons for them should be recorded in writing.Schools should decide at the outcome of an allegation whether it is substantiated, malicious, false,unsubstantiated or unfounded. If an allegation is found to be malicious, it should be removed from the individual’s HR file, but the details of all other allegations should be kept in the person’s HR file. KCSIE states that allegations which are found to be false, unsubstantiated or malicious should not be included in a reference.

Schools are directed to consider what action to take in relation to both the subject of the allegation and the maker of it. The subject of the allegation should be told about it and what action will be taken in as much detail as possible, as soon as possible (but this may have to be after consultation with the police and social services). Schools should provide the subject of the allegation with support, and a named contact to keep them informed about the progress of the case.

Any suspension should be a last resort, not an automatic response when an allegation is reported. It also should not be prolonged. If there isn’t a risk of harm to children or to the fairness of an investigation, then suspension probably is not reasonable. Alternatives to suspension should be considered, for example temporary redeployment in cases where the police and social services do not object to the person continuing to work during the investigation. The potential reputational damage to the employee where an allegation is found to be malicious or unsubstantiated is a relevant factor to take into account, and the reasons for suspension should be recorded.

An unjustified suspension may breach the implied duty of trust and confidence, entitling an employee to resign and claim constructive unfair dismissal. In the case of London Borough of Lambeth v Agoreyo 2019 EWCA Civ 322, a primary school teacher was suspended following an accusation that she used excessive force against two pupils with special educational needs. She resigned and claimed constructive unfair dismissal. The Court of Appeal held that the correct test in deciding whether to suspend was not that suspension was necessary, but rather that there was a reasonable and proper cause to suspend.

KCSIE emphasises the importance of maintaining confidentiality while an allegation against a staff member is being investigated or decided upon, so as to avoid reputational damage from allegations which are subsequently not found to be substantiated. Schools are expected to agree on a strategy to handle this, including how to manage gossip and speculation within the school. Under section 141F of the Education Act 2002, it is an offence to ‘publish’ (widely defined) any material that may identify a teacher who has been accused by, or on behalf of, a pupil from the same school, until the teacher has been charged with an offence or the Teaching Regulation Authority (TRA) publishes information about the allegation. KCSIE says schools are expected to advise parents about this.

Employees subject to allegations should consider raising a grievance if their school is not handling the process as it should, for example because there has been excessive delay in investigating the matter.

If the school concludes that there is evidence to support the allegation against the staff member, the school must then consider whether an immediate referral to the DBS and/or to the TRA must be made, in addition to taking whatever internal action is decided upon (such as disciplinary proceedings for misconduct).

Referrals to Disclosure and Barring Scheme/Teaching Regulation Authority

Under section 35 of the Safeguarding Vulnerable Groups Act 2006 (SVG), schools are legally obliged to refer to the DBS anyone undertaking regulated activity if:

(1) The individual has been removed from doing regulated activity in the school or would have been removed had they not left, and

(2) The reason for this is either

(a) that the individual has engaged in conduct proscribed by the legislation (certain cautions and convictions — including where there is reason to believe that the individual has committed an offence) or

(b) that the “harm test” is satisfied. The “harm test” is that the individual may (not “has”) harm a child, may cause a child to be harmed, may put a child at risk of harm or may attempt to harm a child.

The DBS referral guidance states in relation to the “harm test” that harm is not just physical, it could be emotional, sexual or arising from neglect. The guidance also states that “ To satisfy the harm test there needs to be credible evidence of a risk of harm to vulnerable groups including children such as statements made by an individual regarding conduct/behaviour, etc. For a case to be considered as a risk of harm, relevant conduct would not have occurred but there must be tangible evidence rather than a “feeling” that a person represents a risk to children and/or vulnerable adults”.

If a referral is made, the DBS will then investigate and decide whether to bar the person. Barring has serious consequences for the person’s career, making them most likely unemployable in schools. It is a criminal offence for a school to allow a person who is barred to engage in regulated activity (section 9(1) of SVG).

In addition, where a school dismisses a teacher because of ‘serious misconduct’ or might have dismissed them/ceased using their services for this reason had they not left first, the school must consider whether to refer the case to the TRA (section 141D of the Education Act 2002). The case will be investigated, and ultimately a decision will be made about whether the teacher should be prohibited from teaching, following a professional misconduct hearing. The grounds for prohibition are that there has been ‘unacceptable professional conduct’, conduct which could bring the profession into disrepute or conviction of a relevant offence.

The guidance makes it clear that only cases of ‘serious misconduct’ should be referred to the TRA, not cases of incompetence.

Termination of employment for a reason relating to safeguarding

A dismissal for a safeguarding issue may be fair because of conduct or because of SOSR.

The usual considerations would apply to a misconduct dismissal linked to safeguarding. However, where particularly serious allegations have been made, an employer is expected to meet a higher standard of investigation and procedure for it to be acting within a ‘band of reasonable responses’ (see Tykocki v Royal Bournemouth NHS Foundation Trust UKEAT/0081/16/JOJ where a health care assistant was alleged to have abused and assaulted a patient). There is a higher duty of care placed on an employer where the outcome of an investigation could lead not only to loss of employment but also loss of a career in education or serious reputational damage. Furthermore, if the employer is going to dismiss fairly for misconduct, it must decide whether misconduct did in fact occur- a risk that it might have is not enough, even where the employee is a teacher and the offence is possession of indecent images of children (K v L UKEATS /0014/18/JW).

SOSR is a catch-all category for dismissals for reasons not covered by section 98(2) of Employment Rights Act 1996 (ERA), and gives the employer a potentially fair reason for dismissing an employee even where misconduct has not been established. The substantial reason has to be genuine, it can’t be inadmissible (for example, because it is discriminatory) and it cannot be trivial, but otherwise there are no restrictions on what can be pleaded. Once the employer has established that there is a potential SOSR for the dismissal, the Tribunal will then decide whether the dismissal was substantively fair under section 98(4).

An SOSR dismissal might arise in a situation where a genuine belief that the employee committed misconduct cannot be established on a balance of probabilities but the school wants to terminate employment for another substantial reason. For example reputational damage to the school might arise because of safeguarding rumours, or there might be third party pressure from parents to dismiss an employee. However whether this will be fair does depend on the facts of the case. If the employer is going to argue for dismissal because there is a risk of reputational damage, it must notify the employee of that, to give them a chance to respond (K v L UKEATS /0014/18/JW)

In the case of dismissal due to third party pressure, an employer does not have to establish that the allegations made against the employee are true, or that it agrees that there are grounds for dismissal. However, it is expected to act reasonably to try to avoid or mitigate the potential injustice to the employee, for example by establishing whether the concerns are genuine. In the case of Securicor Guarding Ltd v Rouse 1994 IRLR 633, the dismissal of a security guard because it was thought that customers might be offended that he was about to be prosecuted for sexual offences against children was found to be unfair.

In Z v A UKEAT0203/13/SM, the dismissal of a school caretaker after a year of suspension because of alleged historic sexual abuse (still subject to investigation by the police) was held to be unfair. It was not SOSR to dismiss him just because an allegation had been made.

However, in Leach v OFCOM 2012 EWCA Civ 959, the claimant was arrested abroad on suspicion of child sexual abuse.The proceedings were initially dropped against him due to lack of evidence but he misrepresented to his employer what had happened and there was a concern about media interest in the case and damage to the employer’s reputation. His dismissal was held to be fair for SOSR.

In Lafferty v Nuffield Health UKEATS/0006/19/SS, the claimant was a hospital porter whose duties included transporting anesthetised patients. He was charged with a serious sexual offence not at work, and was dismissed before the criminal trial because of the employer’s concerns about reputational damage. His dismissal was held to be fair for SOSR. The court said that to dismiss fairly in this situation, an employer must have a genuine belief that its reputation is at risk, and must conduct a reasonable investigation focusing on reputational damage, (not the innocence or guilt of the employee). It said that the question is not whether the employee has suffered an injustice, but rather whether the employer acted reasonably in the circumstances.

In the recent case of Q v Secretary of State for Justice UKEAT/0120/19, the Employment Appeals Tribunal upheld the dismissal of a probation officer for failing to disclose to her employer a child protection issue concerning her own child. Information about the claimant’s private life was capable of bringing the Probation Service into disrepute and it was legitimate for the Service to safeguard its reputation. The dismissal was fair. Although the claimant’s Article 8 EHRC right (to private and family life) was engaged, the employer’s interference in that right was proportionate in order to protect the well-being of others.

Finally, and regardless of whether there are proceedings or not, schools must consider whether a referral to the DBS and/or the TRA has to be made, including in circumstances where the termination was a resignation not a dismissal. A voluntary departure will not therefore allow someone working in a school to escape referral. The referral duties are described above. Because the consequences of barring by the DBS and prohibition by the TRA are so serious to an employee’s future career, this may actually be a more important consideration for the employee than the dismissal.

KCSIE states that it is not appropriate for schools to enter into a settlement agreement where it agrees not to refer the employee, in circumstances where the referral criteria are met and that “any settlement agreement that would prevent a school..from making a DBS referral even though the criteria for referral are met is likely to result in a criminal offence being committed”. The school would not be acting in compliance with its legal duty to refer. A contract (such as a settlement agreement) containing illegal terms is likely to be unenforceable and any payment made under its terms may not be recoverable.

Schools are obliged by law to safeguard and promote the welfare of children, in addition to providing education. As a result, they are under significant additional employment-related obligations relating to recruitment, employment and termination for a reason related to safeguarding, with little scope for the exercise of discretion. These inevitably impact on staff. The stakes are high for both schools and their staff, not the least because of reputational damage, even if no child has actually been harmed.

Stephanie McKeon is a member of the Employment Expert Advice Team at Citizens Advice.