We have recently seen Oxfam hitting the headlines, with stories circulating about abuses in the international aid sector and reports of lower public confidence in the sector. Here we consider the governance and legal issues that support practical safeguarding steps for charities. These are important actions to help keep safe those who are most vulnerable, and ensure that employees, volunteers and service providers feel adequately protected when carrying out activities for and on behalf of your charity. They may also prove useful when discussing the topic at the next board meeting – a recommendation made by OSCR to all charities.
Who is responsible?
From a strict charity law and governance perspective, it is the charity trustees (those who act in the management and control of the charity) who have the ultimate responsibility to protect and safeguard those who are connected to the charity (beneficiaries, employees, volunteers etc). Trustees should ensure (in tandem with senior management teams) a safe and trusted working environment is created, in which individuals know how to report concerns in the knowledge they will be dealt with appropriately and sensitively. At least one previous OSCR Inquiry Report (albeit not about safeguarding-related issues) has stressed that charities need to have clear lines of accountability and for staff and others to be able to raise concerns (of whatever nature).
Scottish charity law sets out that charity trustees are bound to “act with care and diligence that is reasonable to expect of a person who is managing the affairs of another person”. This is considered to be a high standard of care (in comparison with managing your own affairs) and trustees should be adequately acquainted with their legal fiduciary duties when making decisions such as putting in place policies and guidance on working with vulnerable individuals or reporting concerns (whether operational, of a HR nature or otherwise).
Acting with care and diligence when looking after someone else’s affairs and when acting in the best interest of a charity’s purposes naturally leads to expectations on leadership, conduct, values and behaviours, how these are implemented in practice as well as what controls are in place to protect beneficiaries and others; all with a view to best supporting and furthering the charity’s purposes.
We started this section with “who is responsible?” rather than “who is liable?” Yes, ‘liability’ is a critical issue to consider in some cases, but to proactively address matters the notion of ‘responsibility’ is the right governance frame of mind to adopt.
What does your constitution say?
Good knowledge of your charity’s constitution is paramount. Charity trustees must seek to ensure the charity acts in a manner consistent with its purposes (and on a ‘softer’ side, its own ethos). In doing so it manages and avoids potential conflicts of interest and other barriers in assessing concerns or complaints, therefore adding to a culture of effective and good governance.
Code of practice and risk register
Charity trustees should work with employees and volunteers to assess safeguarding risks and to agree a clear safeguarding policy or code of practice.
The steps taken to put this is place should be relevant to your charity. Once a code of practice has been developed, it should be disseminated to employees and volunteers through clear communication and training sessions, if appropriate. It is important that the policy is understood by all involved and steps are taken to ensure compliance. There should be a clear structure for reporting concerns or breaches and the policy should include the procedure to be followed when a breach is reported. It is essential in all cases that clear contemporaneous records are kept of reported breaches, the investigation carried out and the reasons for the ultimate outcome.
Charity trustees should review safeguarding risks and their policy on an annual basis, along with your charity’s risk register.
Awareness of abuse in the charity sector has increased following recent media coverage. Combined with recent legislative change, for example; Limitation (Historic Child Abuse) (Scotland) Act 2017 and court decisions extending the vicarious liability of public and charitable organisations, people may be encouraged to come forward with claims where they would not have done so before. Charities should be alert to this possibility and ready to take the appropriate steps if a claim is made.
Having the right procedures and policies also serves as a reminder to ensure fundamental safeguarding measurers are in place. This would include the responsibility for ensuring that anyone who carries out regulated work (paid or unpaid) with children or protected adults is a member of the Protecting Vulnerable Groups Scheme.
OSCR ‘Notifiable Events’
A focus on good governance and a well-supported working environment founded on respect should help to stop concerns over safeguarding occurring, but if a charity is faced with an incident it will (for Scottish registered charities) need to think about ‘Notifiable Events’.
A ‘notifiable event’ is one which has a significant impact on your charity. This will depend on the nature of your charity and its activities, but by way of example, a notifiable event may be:-
- incidents of abuse or mistreatment of vulnerable beneficiaries,
- when a charity has been subject to a criminal investigation or an investigation by another regulator or agency; sanctions have been imposed, or concerns raised by another regulator or agency,
- fraud and theft,
- significant financial loss,
- a lack of charity trustees required to make a legal decision,
- when significant sums of money or other property have been donated to the charity from an unknown or unverified source,
- suspicions that the charity and/or its assets are being used to fund criminal activity (including terrorism), or
- charity trustees acting improperly or whilst disqualified.
While there is no hierarchy of events, those involving mistreatment of beneficiaries or others, criminality, regulatory intervention or a potential existential threat to the charity’s finances seem of particular note.
It is often the case that a particular issue requires to be notified or reported to various regulators or authorities and charities should consider the appropriate and co-ordinated approach to best report issues to OSCR and others, such as regulators and the police.
Charities should also consider their roles as employers with particular focus on having in place up to date and legally compliant HR policies and procedures and training staff appropriately. By way of example, two issues arising from the recent charity-related stories in the media would be how to take appropriate disciplinary action against employees who may be accused of wrongdoing, and the possibility of the charity being liable for the wrongdoing of one employee against another.
When an employee has been accused of wrongdoing, it will likely be appropriate for the charity to consider taking disciplinary action. To help reduce the risk of employment-related claims, such as unfair dismissal, charities should ensure that a fair process is followed when disciplining an employee who is accused of misconduct and avoid knee-jerk reactions. The starting point should always be having in place a clear, robust and fair disciplinary procedure which is communicated to employees and sets out, as far as possible, behaviour that will be viewed as misconduct or gross misconduct. The employee should also be given details of the allegations made, and be given the opportunity to respond to them, both in writing and in meetings and be given the chance to appeal any decisions to impose a disciplinary sanction. In circumstances where there are allegations of gross misconduct and these can be substantiated, dismissal of an employee will likely be justified – but only if a fair process is followed.
In addition to the general concept of vicarious liability, which provides that employers can be liable for the actions of their employees in particular, there are specific provisions in the Equality Act 2010 which can make employers liable for certain types of discriminatory action by their employees (for example sexual and other forms of harassment). So, if an employee sexually assaulted or verbally abused a colleague, the charity could be held responsible for that. However, the charity can have a defence to this if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act. This would include measures like putting in place clear policies and procedures with regards to equal opportunities, anti-harassment and bullying, and providing adequate training to staff members on equal opportunities and harassment issues. Policies, procedures, training and compliance should be grounded in respect and the standards that the public expect of those in the charities sector.
Law and regulation is a good thing….
Rather than charities and their trustees talking about “falling foul of the law” and regulation, look at how the law can help charities achieve their aims and objectives in a changing regulatory landscape.
This has been our recommended approach at recent charity seminars. Recent events in the sector have underlined the importance of putting in place the right policies and procedures (grounded in respect, accountability, support, high standards, a desire to further the charity’s purposes and help beneficiaries) and then following them. These actions should not be looked at in legal isolation but instead, viewed as helping to instil the right culture. A culture which will help reactivate and bolster the public confidence in such an important sector in society.