Disqualification by Association

Author:

The Department for Education recently revised its advice on safeguarding children up to the age of 8. The advice stands as a new interpretation of the disqualification criteria under the Childcare (Disqualification) Regulations 2009. These disqualify people cautioned for or convicted of certain violent or sexual offences from working in nurseries, primary or secondary schools.

No problems there but here's the catch; the disqualification criteria include:

              "living in the same household where another person who is disqualified lives or works (disqualification 'by association')."

Schools are advised to require existing teachers and anyone "directly concerned in the management" of their education services to provide relevant information about themselves and those who live or work in the same household with them. This must then be passed to Ofsted.

Anyone disqualified under this guidance may not continue in post so must be transferred to another role, suspended or in an extreme case dismissed. The individual may apply to Ofsted for a Waiver of Disqualification but remains disqualified pending a decision. So:

  • teachers/managers may be accountable for the actions of third parties over whom they may have had no control or influence when relevant events took place;
  • A young teacher sharing a house or flat with friends should enquire whether they have relevant cautions/convictions. If someone owns up the teacher must pass on the details and accept removal from post before applying to Ofsted for a waiver. Of course the teacher could move to a new house share but that's easier said than done.
  • Head Teachers may face arguments about reasonableness under the Employment Rights Act and Human Rights legislation but these will be trumped by the Childcare Regulations.

Although this doesn't feel right there's an extremely serious and difficult issue behind the latest guidance. It's not unusual for entirely innocent third parties to be manipulated or subjected to undue influence by those with whom they live or with whom they've forged close personal relationships. It's difficult to reconcile the competing demands of safeguarding, fairness, rehabilitation and common sense; they might be irreconcilable which may be why the human rights perspective is that all such rights involve a balance and on this occasion the balance requires disclosure.