Allegations that many schools, colleges and universities have a 'rape culture' have dominated news headlines. The website everyone's invited has published thousands anonymous online testimonies in which young people detail their accounts of sexual harassment, rape, abuse and assault.
Schools and colleges have been accused of failing to safeguard those in their care. Ofsted are currently undertaking a review to assess the extent of this issue and the Met police have confirmed they are going through published testimonies and have begun the process of contacting those educational establishments it can identify.
Although the accounts are anonymous, Schools Week, recently reported that the website is thinking about publishing a tally of sex abuse cases – including a list of how many times individual institutions have been mentioned. It if does, individual schools and colleges will be put under extreme pressure to explain why they have failed to act and what changes they are making to ensure that their students (and others) are not sexually abused when they are at school or college.
This blog written by Tina Laknani and Jo Moseley looks at the issues schools and colleges must consider if they suspect that a teacher or other member of staff has sexually abused a student or someone else. It doesn't cover pupil on pupil assault.
Schools and colleges have a statutory duty to protect and promote the welfare of their students. Statutory guidance is available from the government - Keeping children safe in education. This makes it clear that all staff must have an awareness of the safeguarding issues that can put children at risk of harm.
Schools and colleges should have their own child protection policy and have a safeguarding lead in place who is 'always available to discuss safeguarding concerns'.
Every local authority has a statutory responsibility to have a Local Authority Designated Officer (LADO) who is responsible for co-ordinating the response to concerns that an adult who works with children may have caused them or could cause them harm. LADO's provide advice and guidance to schools and colleges where they have concerns about the behaviour of an adult who works with children and young people.
What should we do if a teacher or other member of staff is accused of sexual assault?
It is essential that any allegation of abuse made against a teacher or other member of staff or volunteer in a school or college is dealt with quickly, in a fair and consistent way. You must protect the child/student and provide appropriate support to the person who is the subject of the allegation.
In general terms, in addition to obtaining support from a LADO, you will need to investigate any complaints against a member of staff and take disciplinary action if your investigation suggests that they have a case to answer. If you believe, on reasonable grounds, that the employee has harassed, abused or assaulted a pupil you will be able to dismiss them for gross misconduct. You must of course, follow your usual procedures, including allowing the employee to appeal against their dismissal.
We provide more detail about the scope of your investigation in our answer to the question about whether you need to refer allegations to the police.
Should we suspend them?
In cases where a member of staff is accused of serious misconduct you will usually want to suspend them because of safeguarding concerns. However, you'll need to consider alternatives first and, if you do decide to suspend them you must keep this under review (particularly if the investigation drags on). You can find out more about the steps you need to take before suspending a member of staff here.
We also recommend that you offer support to anyone facing career ending allegations and provide them with a named contact they can speak to.
Do we have to refer an allegation to the Teaching Regulation Agency?
Schools and colleges have a statutory duty to consider reporting cases of serious misconduct to the Teaching Regulation Agency (TRA) even if the employee has resigned. The TRA is an executive agency of the Department for Education and is responsible for regulating the teaching profession in England. It investigates cases of serious teacher misconduct and decides whether to refer a case to a professional conduct panel. The panel then investigates whether a prohibition order should be issued.
You can only make a referral if the teacher's behaviour amounts to 'serious misconduct'. This means that the teacher's behaviour must be fundamentally incompatible with their role and could lead to them being prohibited from teaching. It would therefore include sexual harassment, abuse and assault - issues that are being reported on the everyone's invited website.
You can't refer teachers to the TRA for alleged incompetence or under performance.
What factors should you consider before referring a teacher to the TRA?
The following factors are relevant when deciding whether to refer a teacher to the TRA.
Has the teacher:
- behaved in a way that has harmed a child, or may have harmed a child?
- possibly committed a criminal offence against or related to a child?
- behaved towards a child or children in a way that indicates he or she may pose a
- risk of harm to children? or
- behaved, or may have behaved, in a way that indicates they may not be suitable to work with children?
Essentially, if you believe that the alleged misconduct is so serious, it is necessary to consider whether the teacher should be prevented from teaching, you should make the referral.
When should we make the referral?
You do have discretion around the timing of any referral. Whilst it's possible to make a referral at an early stage, most organisations will only refer a case once they have completed their own internal disciplinary processes.
There may, however, be circumstances where schools/colleges can refer a teacher to the TRA before they have concluded their own disciplinary processes, which might happen, for example, if the teacher is signed off sick for a long period of time.
Do we have to report allegations of sexual abuse or other alleged criminal conduct to the police?
The procedures for dealing with allegations need to be applied with common sense and judgement. Many cases may well either not meet the criteria set out above, or may do so without warranting referring the issue to the police or to local authority children’s social care services.
Some rare allegations will be so serious they require immediate intervention. The LAPO should be informed of all allegations that come to your attention and appear to meet the criteria so they can consult police and children’s social care services as appropriate.
The headteacher or principal or (where the headteacher or principal is the subject of an allegation) the chair of governors, or the chair of the management committee or proprietor of an independent school (the ‘case manager’), should discuss the allegation immediately with the LADO. They will consider the nature, content and context of the allegation and agree a course of action. The LADO may ask the case manager to provide or obtain relevant additional information, such as previous history, whether the child or their family have made similar allegations previously and about the individual’s current contact with children. There may be situations when the case manager will want to involve the police immediately, for example if the person is deemed to be an immediate risk to children or there is evidence of a possible criminal offence. Where there is no such evidence, the case manager should discuss the allegations with the LADO to help determine whether police involvement is necessary.
If there is cause to suspect a child is suffering or is likely to suffer significant harm, you must convene a strategy discussion in accordance with the statutory guidance Working Together to Safeguard Children. If the allegation is about physical contact, you'll need to take into account the fact that teachers and other school and college staff are entitled to use reasonable force to control or restrain children in certain circumstances, including when they have to deal with disruptive behaviour.
If you don't need to refer matters to the police or children’s social care services, the LADO should discuss the next steps with the case manager. In those circumstances, the options open to you depend on the nature and circumstances of the allegations and the evidence and information available. This will range from taking no further action to commencing disciplinary procedures.
One other thing to bear in mind. If you don't have suitably experienced people in your school and college, or where the allegations are particularly complex, you may need to instruct an independent investigator.
What if the teacher no longer works for us?
Allegations against a teacher who is no longer working for you should be referred to the police. Historical allegations of abuse should also be referred to the police.
How should we deal with allegations against supply teachers?
You still need to ensure that allegations are dealt with appropriately, even if you don't directly employ the person in question. You should not just stop using the supply teacher without finding out the facts and liaising with the LADO to determine a suitable outcome.
You should also discuss with the agency whether it is appropriate to suspend the supply teacher, or redeploy them to another part of the school, whilst they carry out their investigation.
Agencies should be fully involved and co-operate in any enquiries from the LADO, police and/or children’s social services. The school or college will usually take the lead because agencies do not have direct access to children or other school staff, so they will not be able to collect the facts when an allegation is made, nor do they have all the relevant information required by the LADO as part of the referral process.
They should be advised to contact their trade union representative if they have one, or a colleague for support. The allegations management meeting which is often arranged by the LADO should address issues such as information sharing, to ensure that any previous concerns or allegations known to the agency are taken into account by the school during the investigation.
What data and confidentiality provisions do we need to consider?
It is extremely important that when an allegation is made, you make every effort to maintain confidentiality and guard against unwanted publicity while it is being investigated or considered. The Education Act 2002 introduced reporting restrictions preventing the publication of any material that may lead to the identification of a teacher who has been accused by, or on behalf of, a pupil from the same school/college (where that identification would identify the teacher as the subject of the allegation). The reporting restrictions apply until the point that the accused person is charged with an offence, or until the Secretary of State or the General Teaching Council for Wales publishes information about an investigation or decision in a disciplinary case arising from the allegation.
The reporting restrictions are disapplied if the individual to whom the restrictions apply effectively waives their right to anonymity by going public themselves or by giving their written consent for another to do so or if a judge lifts restrictions in response to a request to do so.
The legislation imposing restrictions makes clear that 'publication' of material that may lead to the identification of the teacher who is the subject of the allegation is prohibited. 'Publication' includes 'any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public.' This means that a parent who, for example, publishes details of the allegation on a social networking site would be in breach of the reporting restrictions (if their comments could lead to the identification of the teacher by members of the public).
In accordance with the Authorised Professional Practice published by the College of Policing in May 2017, the police will not normally provide any information to the press or media that might identify an individual who is under investigation, unless and until the person is charged with a criminal offence.
The case manager should take advice from the LADO, police and children’s social care services to agree the following:
- who needs to know about the allegation and, importantly, exactly what information can be shared
- how to manage speculation, leaks and gossip
- what, if any, information can be reasonably given to the wider community to reduce speculation; and
- how to manage press interest
The police and other agencies can request access to personal information held by local authorities for specified purposes. These types of requests include Schedule 2 Part 1 Para. 2 or Para. 5 Data Protection Act 2018 and 2013 Protocol, Annex C information disclosure requests.
In this context, they can ask for information if it's about the prevention or detection of crime or the apprehension or prosecution of offenders. The police should tell you why it needs the personal data you hold and you must only share personal data that is limited to what is requested and what is reasonable.
What are our obligations with regard to the DBS?
You are under a legal duty to make a referral to the DBS where you believe that an individual has engaged in conduct that harmed (or is likely to harm) a child; or if a person otherwise poses a risk of harm to a child.
Need more information?
This is a difficult area and involves both employment law, criminal and regulatory issues and public law. Please contact our employment law expert Jenny Arrowsmith in the first instance for help and support.