Keeping children safe in education 2022

KCSIE is split into five sections (safeguarding information for staff; management of safeguarding; safer recruitment; handling allegations against staff and; child-on-child sexual violence and sexual harassment). You can download the updated guidance by clicking here. The employment law implications of this year’s key changes are summarised below:

Safer recruitment: online searches

Paragraph 220 of the guidance now recommends that during the shortlisting process, schools should “consider carrying out an online search as part of their due diligence on the shortlisted candidates”.

The rationale is to seek to prevent (or minimise the risk of) individuals being employed to work in schools who are considered to be unsuitable to do so. For example, someone returning to the UK may have a clear DBS and overseas criminal records check, but a search of the internet could potentially disclose concerns about their suitability. Any specific concerns can then be discussed during the interview stage with the candidate.

There is very little practical guidance available at this stage on when you should “consider” the use of online search.  KCSIE has stopped short of making this mandatory with the use of “must”, instead opting for the wording “should consider”. This suggests you have an element of discretion when deciding whether or not the online search should take place.

However, we know that Ofsted are likely to look for evidence that you are complying with and following the updated 2022 version of KCSIE, so you may decide that it is better to air on the side of caution and undertake the online search – which is evidenced in writing.

Importantly, this only includes a search for information that is freely and publicly available, such as a google search.

How should you carry out the search?

Our advice is that the person conducting the search should not be directly involved in the recruitment process.  This is because, having done the search, they may be privy to additional information about the candidate, such as their age, sexual orientation etc and therefore removing them from the process reduces the possibility of an argument (or inference) that any future decision on recruitment was based on any discriminatory factor.

In terms of the extent of the search, our view is that entering the applicant’s name into a search engine such as Google would satisfy this recommendation.  We do not believe you need to trawl through someone’s historic social media profile without good reason.

To further reduce the risk of a claim that an individual has been unfairly treated or discriminated against, it would be sensible to adopt a consistent approach to all checks and record what searches were made and what you have found, (or recording that there were no concerns, as appropriate).  Ofsted will undoubtedly want to see written evidence of the approach you have taken.

What do you need to look out for?

Check for evidence of criminal convictions or anything else which you feel would make them unsuitable to work with children, such as online discriminatory or offensive comments.

What should you do with the information you find?

Someone not involved in the interview process (for example someone from HR) should review the online search results, decide whether it is potentially relevant to their suitability for the role.  If there are concerns, then these concerns should be discussed at the interview, so that the candidate can provide their input.

Safer recruitment: references and low level concerns

Paragraph 223 of KSCIE 2022 advises schools providing references to only confirm whether the applicant is suitable to work with children and ‘the facts (not opinions) of any substantiated safeguarding concerns/allegations that meet the harm threshold’.

Unsubstantiated, false or unfounded allegations should not be included in a reference.  Similarly, low-level concerns should not be included in a reference unless (1) it relates to misconduct or poor performance (which would normally be included in a reference); or (2) where it has been substantiated and meets the harm threshold.

The new guidance provides information about how low-level concerns can arise and how they should be shared.  The term ‘low-level’ concern does not mean that it is insignificant. A low-level concern is any concern – no matter how small, and even if no more than causing a sense of unease or a ‘nagging doubt’ – that an adult working in or on behalf of the school or college may have acted in a way that:

• is inconsistent with the staff code of conduct, including inappropriate conduct outside of work; and
• does not meet the harm threshold or is otherwise not serious enough to consider a referral to the LADO.

Examples of such behaviour could include, but are not limited to:

• being over friendly with children;
• having favourites;
• taking photographs of children on their mobile phone, contrary to school policy;
• engaging with a child on a one-to-one basis in a secluded area or behind a closed door; or
• humiliating pupils.

Other changes

The other key changes to KCSIE 2022 concern the “management of safeguarding”.  KCSIE now explains that children may not feel ready or even know how to tell someone that they are being abused but that this should not discourage staff from speaking to the DSL if they have concerns.  It also includes a new paragraph on domestic abuse.

The new guidance also confirms that all governors and trustees should receive safeguarding and child protection training at their induction.

Governing bodies and proprietors should do all they reasonable can to limit a child’s exposure to online safeguarding risks though their IT systems and should be aware of their obligations under the Human Rights Act 1998 (which requires all rights under that act to be protected and applied without discrimination.  Such rights  include the right to freedom from inhuman and degrading treatment, the right to respect for private and family life including a duty to protect individuals’ physical and psychological integrity and the right to education), the Equality Act (which prohibits unlawful discrimination on the basis of a protected characteristic such as disability, sex, race, sexual orientation and gender reassignment) and requires reasonable adjustments to be made for disabled people), the Public Sector Equality Duty (which requires schools to have required to eliminating discrimination when exercising their powers) and any local multi-agency safeguarding arrangements.

The update includes more guidance about child-on-child sexual violence and sexual harassment.  This now fully absorbs the Department for Education’s guidance.  KCSIE confirms that a zero-tolerance approach to child-on-child sexual violence and sexual harassment should apply.  The guidance highlights that failure to act on or being seen to tolerate such behaviour can lead to a culture of unacceptable conduct and can lead to such abuse being normalised.  Even if there are no reports of such behaviour, schools should be aware that it could still be taking place.  Children with SEND are at an increased risk of such abuse.  Children who display harmful sexual behaviour should be given support as it may indicate that they have been abused.

There is also a new section on confidentiality and anonymity which underlines that confidentiality should never be promised as it is likely that the staff member will need to seek further guidance and support and information may be shared without consent under the UK GDPR.  However, staff should do all they reasonably can to protect the anonymity of any children involved in any report of sexual violence or sexual harassment.  There is additional guidance on working with parents and carers and supporting children who have witnessed sexual violence.  The report highlights that LGBT pupils may be at higher risk of being bullied and underlines that support is available to help schools counter any bullying or abuse.

If you have any questions or concerns please contact Graham Vials, or any one of our expert Employment lawyers.