The High Court has ruled that the former employer of a teacher does not owe that teacher a duty of care when making safeguarding disclosures. This decision comes as a welcome clarification.
Under the Education Act 2002, a local authority has a statutory duty to ensure that any functions imposed on them as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.
In the recent case of Melik Camurat -v- Thurrock Borough Council , Mr Camurat had faced a series of allegations relating to the inappropriate use of force in his dealings with pupils. Following negotiations, a compromise agreement was agreed between Mr Camurat and the local authority (which was responsible for the school), which included a reference (at Schedule 2) that was positive except for disclosing a final written warning relating to the confiscation of a pupil’s mobile phone.
Clause 10 of the compromise agreement read as follows:
‘Any written reference which any third party may request the Employer to give in relation to the Employee will be in the terms set out in schedule 2. Any reference given orally will be consistent with the terms and spirit of the agreed reference…’
Subsequently the police requested that the local authority provide a chronology detailing the history of disciplinary problems Mr Camurat encountered throughout his employment with the school. The local authority obliged. This chronology was reproduced in an Enhanced Criminal Record Certificate (ECRC) and ultimately caused Mr Camurat to be dismissed from his new employment and caused him continuing loss thereafter. It was not until February 2014 that the police withdrew the matters set out in the ECRC. Mr Camurat claimed for losses throughout this period.
One of Mr Cumurat’s claims was breach of duty of care in negligence. In giving his judgment, Sir Colin Mackay held that to impose a duty of care on the former employer of a teacher when making safeguarding disclosures ‘would discourage those who would in good faith provide assistance to the police on safeguarding issues’. Importantly, the High Court also ruled that an express or implied term within a compromise agreement to the effect that any disclosure to safeguarding bodies would be in the spirit of an agreed reference would be void. Such a term would neglect a local authority’s duty to safeguarding and promoting the welfare of children.
Mr Camurat has been given leave to appeal this decision.
The facts of this case are specific to the Education Act 2002 but the judgment has relevance outside the education sector. For example it is very relevant in the context of the NHS and has analogous application to regulatory bodies. In fact, there is already specific guidance in MHPS regarding the ambit of settlement agreements.