Top tips: disciplinary proceedings relating to safeguarding

31 January 2018

We advise a range of educational bodies on managing disciplinary proceedings with a safeguarding element. These range from allegations that a teacher has caused emotional harm to a child, through to allegations of improper relationships with students, grooming and even sexual abuse. These are complex situations because of the multi-agency approach which is needed. It is imperative that you comply with any applicable safeguarding requirements. All schools and colleges must follow the statutory guidance 'Keeping children safe in education'. Each local authority will also have a safeguarding procedure manual which must be followed. The Local Authority Designated Officer (LADO) must be informed as soon as possible of any concerns or allegations about one of your members of staff which suggest they may pose a risk to children.

At the same time as consulting with the LADO and other relevant agencies, you need to ensure that you carry out a process which complies with your disciplinary procedure and the ACAS Code of Practice on Disciplinary and Grievance Procedures. Fairness to the member of staff is important. However, this does not override your obligation to promote the welfare of your students and to act in the best interests of the organisation.

If there is a parallel Police investigation this will need to be taken into account. However, it is a common misconception that an internal disciplinary process cannot proceed when there is an ongoing Police investigation and/or pending criminal proceedings. In most cases, it is possible, and preferable, to make a decision under your disciplinary process without waiting months on end. The ACAS Code requires employers to keep any period of suspension as brief as possible and under review. The disciplinary hearing should also be conducted without unreasonable delay. A lengthy suspension on full pay is costly for your organisation and unlikely to reduce the risk of employment tribunal proceedings. The longer an employee is out of the organisation, the harder it will be for them to return to work. A long drawn out process may also cause reputational damage if parents feel you are not taking decisive action. This can be just as harmful as acting too hastily without carefully considering the evidence.

You must be cautious about the risk of prejudicing any criminal case. You should consult with the LADO and comply with any instructions from the investigating police officers; such as to avoid interviewing the alleged victim(s). However, in many cases whether an employee is charged with, or convicted of, a criminal offence will not ultimately determine whether disciplinary action is appropriate. Instead the focus should be on what you reasonably believe how this impacts on their suitability to do the job, their relationship with the employer, colleagues and students. You should be carefully considering whether; they have breached your code of conduct or any other policies, they have been dishonest at any stage of the process, the LADO’s advice as to whether they pose a risk to children and, the reputational consequences of continuing to employ them. You can summarily dismiss for gross misconduct but if you are relying on some other substantial reason, such as reputational risk, they will be entitled to notice or pay in lieu.

Download the full report for our key considerations.

Louise Rea
Senior Associate, Bates Wells Braithwaite

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