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21 January 2015

Guilty by Association: Draconian Guidance from the Department of Education

3 mins

In October 2014 the Department of Education issued new Guidance to Schools which have a huge impact on those working in schools and for those involved in providing advice in employment and criminal law: Keeping children safe in education. The Guidance provides clarification on the Childcare Regulations 2009 and updates Guidance already issued in April 2014 which is designed to safeguard children. Initially the Guidance was designed for child-minders and those working with children in a home setting but it has now been expanded to cover those working in schools.

Despite its laudable aims, this Guidance has far reaching implications for all teachers as it imposes, amongst other things, compulsory disqualification for teachers working with children under 8, if they “are associated with” someone who has a conviction for a violent (s47 ABH and upwards) or sexual offence. This could include anyone who lives or works in the same household as the offender and the conviction can be of any age.

Since the Guidance was issued, teachers have to disclose if they are associated with   anyone convicted of such offences. Disclosure will result in automatic suspension while OFSTED decide whether they will issue a waiver or not. There is currently a backlog of 2 months while OFSTED try to deal with the influx of applications for waivers since the renewed Guidance was published. Disclosure will also have a devastating impact on future employment prospects because, even if a waiver is given, it will still have to be disclosed when applying for any new post.

The conviction does not have to be related to children, therefore teachers are finding themselves suspended for reasons that are completely unrelated to child safety. A head teacher is reported as having resigned as he did not wish to disclose that he lives with his elderly father who has convictions from many years ago. Teachers who are carers are placed in the invidious position where they may have to choose between automatic disqualification or placing a relative with whom they live, in care.

The Teachers Union NASUWT have stated that:

the application of the Regulations has mushroomed beyond the intended parameters. Our stance is however that as children (in schools) are within controlled environments, the Regulations should be waived.

They advise their members that:

Should you receive notice that you have been subject to disqualification by association, it is important that you contact the NASUWT immediately so that we are able to provide appropriate support for you. This is an area we are actively looking into to ensure our Members are safeguarded. 

NASUWT are currently taking legal advice on the application of these Regulations.

It is also essential that criminal lawyers are aware of this legislation. Although we can only advise on the evidence and instructions given, it is essential that clients are made aware of the unexpected consequences of a conviction on their innocent teacher partner who is likely to have absolutely nothing to do with their offending.

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