Publication of the Department for Education's updated guidance on "Keeping children safe in education – childcare disqualification requirements" in October 2014, has caused confusion and fear across the education community, which has resulted in the suspension of nearly 300 school staff including teachers.

In our Winter 2014 issue of Education Matters we addressed the issue of dismissing an employee for allegations of historic child abuse. However, this recent publication by the Government has raised new issues for some educational institutions who are required to consider suspending employees who live with someone who has a conviction for a violent or sexual crime. This latest development is known as "disqualification by association".

The Childcare (Disqualification) Regulations have been in place since 2009, and confirm the position in section 75 of The Childcare Act 2006. However, it is only the recent Government guidance which has highlighted their application to schools. The legislation sets out that "a person who lives in the same household as another person who is disqualified from registration, or in a household in which any such person is employed, is disqualified from registration". Under this revised guidance, school staff providing early years childcare (which includes education and any other supervised activity, up to the age of 6, or later years childcare to children under the age of 8), are automatically disqualified if they are living with someone with a conviction for a violent or sexual crime. Teachers of children who are 6 or over are not subject to the provisions of the Childcare Act.

Schools may choose to ask staff to complete and sign a declaration form to identify those caught by the "by association" requirement, particularly as an individual is likely to be reluctant to disclose it voluntarily. Where a disqualified individual is identified, any relevant information passed to the school must be provided to Ofsted as soon as reasonably practicable, but at the latest within 14 days of the date the school became aware of the information (or ought reasonably to have become aware of it if they had made reasonable enquiries).

Individuals who are disqualified are not permitted to work in early or later years childcare, or be directly concerned in the management of that provision, until they have been granted a disqualification waiver by Ofsted. The school is required to immediately remove the individual from the relevant setting,. This could involve temporarily reassigning the individual's role within the organisation, but more than likely it will involve suspending the individual and in some extreme circumstances it may involve dismissal.

This guidance has led to a myriad of problems. Ofsted is reportedly overwhelmed by applications for waivers, and is struggling to deal with the backlog. Meanwhile, schools must fill any gaps as an interim measure, as it may take Ofsted up to two months to deal with applications for waivers. Before issuing a waiver, Ofsted must fully investigate and be satisfied that it is appropriate to do so.

Previous cases have already highlighted the difficulty in dismissing school employees based on their association with those with criminal convictions. For example, in the case of H v X Primary School in 2012 it was found that a teaching assistant had been unfairly dismissed following her son's conviction of an offence of sexual activity with a girl under the age of 16 and an offence of grooming. This latest development only adds to the complexity. Schools face a difficult balance, where employees will maintain they should not be punished if they themselves have done nothing wrong. On the other hand, schools will argue that they must err on the side of caution when it comes to child protection. We would advise schools to take specialist advice before dismissing any employee in these circumstances.

Unsurprisingly, although the guidance and legislation do not explicitly state that suspension must follow on from automatic disqualification, many schools have chosen to be cautious and have suspended staff until they are able to obtain a waiver from Ofsted. However, it is highly plausible that employers will unintentionally lose sight of their obligations to their employees and thereby expose themselves to legal claims such as for unfair dismissal or constructive dismissal. Schools that are considering action against an employee on the basis that a relative or associate has been convicted of a serious offence must give due consideration to the surrounding circumstances:

• what are the potential safety risks to the children? • does the teacher have a good previous record? • has the teacher followed the school's disclosure protocols?

Whilst this revised guidance may be limited to staff in primary schools at present, it serves as an important reminder for all academic institutions, and employers more generally, to act cautiously when considering matters which require balancing the rights of an employee with their safeguarding duties. Where an employer considers suspending an employee, it should be careful to follow a fair procedure. Employers should take steps to ensure that:

  1. The period of suspension should be reasonable: any suspension should be brief and only for as long as is necessary.
  2. The employee should be kept informed of progress: provide regular updates to the employee on the progress of any investigations, and provide adequate notice of any meetings you require them to attend.
  3. The employer must act reasonably and have reasonable grounds for the suspension: consider all the surrounding circumstances carefully and consider each case on its own facts. Consider if the suspension is necessary, or whether there is another means of meeting your obligations.
  4. Follow the correct procedure: if the suspension results in a dismissal, the Employment Tribunal will scrutinise the employer's conduct throughout the process. Following the correct procedure can support the contention that the action taken was fair and reasonable.
  5. Put in place a policy for dealing with this scenario and follow it: going forward, ensure that any newly recruited staff have made the appropriate disclosures to Ofsted and have obtained the appropriate waiver before their employment commences. For existing staff, following a consistent policy can help evidence that the decision was reasonable.

Suspension of an employee may be lawful for a limited period, and employees should only be left on suspension for as long as is necessary to investigate the matter. In cases where an individual has been suspended as a result of disqualification by association, the suspension period should end as soon as the employee receives their disqualification waiver from Ofsted. In instances where dismissal is considered, employers should take steps to protect themselves from claims of unfair dismissal by following their disciplinary procedure, at all times acting reasonably and making sure there is a fair reason for dismissal under the usual unfair dismissal rules.