Part three: Safer recruitment

Contents

Recruitment, selection and pre-employment vetting
Types of check

Recruitment, selection and pre-employment vetting

111.

It is vital that schools and colleges create a culture of safe recruitment and, as part of that, adopt recruitment procedures that help deter, reject or identify people who might abuse children, (see also paragraphs 89-90 about safer recruitment). This part of the guidance describes in detail those checks that are, or may be, required for any individual working in any capacity at, or visiting, the school or college. Governing bodies and proprietors must act reasonably in making decisions about the suitability of the prospective employee based on checks and evidence, including criminal record checks (Disclosure and Barring Service (DBS) checks), barred list checks and prohibition checks, together with references and interview information.[38]

[38] Regulations 12 and 24 of the School Staffing (England) Regulations 2009 for maintained schools, apply also to the management committee of pupil referral units through the Education (Pupil Referral Units) (Application of Enactments) (England) Regulations 2007. Part 4 of the Schedule to the Education (Independent School Standards) (England) Regulations 2014, applies to independent schools, including free schools and academies. Regulation 3 and paragraphs 4, 5 and 6 of Part 1 and paragraphs 15, 16 and 17 of Part 2 of the Schedule to the Non-Maintained Special Schools (England) Regulations 2015 apply to non-maintained special schools. Regulation 5 of the Further Education (Providers of Education) (England) Regulations 2006 apply to colleges.

112.

As outlined in this guidance, the level of DBS certificate required, and whether a check for any prohibition, direction, sanction, or restriction is required (see paragraphs 122-129), will depend on the role that is being offered and duties involved.

113.

As the majority of staff will be engaging in regulated activity, an enhanced DBS certificate which includes barred list information, will be required for most appointments. In summary, a person will be considered to be engaging in regulated activity if, as a result of their work, they:

  • Will be responsible, on a regular basis in a school or college, for teaching, training instructing, caring for or supervising children; or
  • Will carry out paid, or unsupervised unpaid, work regularly in a school or college where that work provides an opportunity for contact with children;[39] or
  • Engage in intimate or personal care or overnight activity, even if this happens only once.

Click here for more detailed description of regulated activity.

[39] Applies to any college that provides, exclusively or mainly, full-time education to children, i.e. persons under the age of 18.

114.

For all other staff who have an opportunity for regular contact with children who are not engaging in regulated activity, an enhanced DBS certificate, which does not include a barred list check, will be appropriate. This would include contractors (see paragraphs 173-176 for further information about contractors) who would have the opportunity for contact with children and who work under a temporary or occasional contract.[40]

[40] Temporary or occasional is not further defined by legislation. Employers should apply the ordinary meaning of these terms, i.e. occasional - 'a particular occasion or on an irregular basis'; temporary services - 'lasting only for a limited period, not permanent'.

115.

In a school or college, a supervised volunteer who regularly teaches or looks after children is not in regulated activity.[41] The government has published separate statutory guidance on supervision in relation to regulated activity (see Annex F). When schools and colleges are considering which checks should be undertaken on volunteers, they should have regard to that guidance, together with paragraphs 161-166. However, schools and colleges may choose to carry out an enhanced DBS check, without barred list information, in certain circumstances (see paragraph 163).

116.

In addition to obtaining any DBS certificate as described above, any member of staff who is appointed to carry out teaching work will require an additional check to ensure they are not prohibited from teaching.[42] For those engaged in management roles (in independent schools - including academies and free schools) an additional check is required to ensure they are not prohibited under section 128 provisions.[43] See the 'Pre- appointment checks'.

[41] 'Supervised' and 'unsupervised' have a particular meaning in relation to regulated activity.
[42] The Teachers' Disciplinary (England) Regulations 2012 apply to schools and sixth form colleges and any person that is subject to a prohibition order is prohibited from carrying out teaching work in those establishments. By virtue of their Conditions of Funding in respect of funding received from the Education and Skills Funding Agency, before employing a person to carry out teaching work in relation to children, colleges must take reasonable steps to establish whether that person is subject to a prohibition order made under section 141B of the Education Act 2002, and may not employ or engage a person who is subject to a prohibition order in such a role. The School Staffing (England) Regulations 2009, the Non-Maintained Special Schools (England) Regulations 2015 and the Education (Independent School Standards) Regulations 2014 require governing bodies or proprietors to check that a person to be appointed is not subject to an interim prohibition order.
[43] Section 128 of the Education and Skills Act 2008 provides for the Secretary of State to direct that a person may be prohibited or restricted from participating in the management of an independent school (which includes academies and free schools).

Regulated activity

The full legal definition of regulated activity is set out in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006 as amended by the Protection of Freedoms Act 2012. HM Government has produced a Factual note on regulated activity in relation to children: scope.

Regulated activity includes:

  1. Teaching, training, instructing, caring for (see (c) below) or supervising children if the person is unsupervised, or providing advice or guidance on physical, emotional or educational well-being, or driving a vehicle only for children;
  2. Work for a limited range of establishments (known as 'specified places', which include schools and colleges), with the opportunity for contact with children, but not including work done by supervised volunteers.

    Work under (a) or (b) is regulated activity only if done regularly.[44] Some activities are always regulated activities, regardless of frequency or whether they are supervised or not. This includes:
  3. relevant personal care, or health care provided by or provided under the supervision of a health care professional:
    • personal care includes helping a child with eating and drinking for reasons of illness or disability or in connection with toileting, washing, bathing and dressing for reasons of age, illness of disability;[45]
    • health care means care for children provided by, or under the direction or supervision of, a regulated health care professional.

[44] The Safeguarding Vulnerable Groups Act 2006 provides that the type of work referred to at (a) or (b) will be regulated activity if "it is carried out frequently by the same person" or if "the period condition is satisfied". Paragraph 10 of Schedule 4 to this Act says the period condition is satisfied if the person carrying out the activity does so at any time on more than three days in any period of 30 days and, for the purposes of the work referred to at (a), apart from driving a vehicle only for children, it is also satisfied if it is done at any time between 2am and 6am and it gives the person the opportunity to have face to face contact with children.
[45] It is not intended that personal care includes such activities as, for example, parent volunteers helping with costumes for school plays or helping a child lace up football boots.

Types of check

Disclosure and Barring Service (DBS) checks

117.

Three types of DBS checks are referred to in this guidance (see Annex G for more information):

  • Standard: this provides information about convictions, cautions, reprimands and warnings held on the Police National Computer (PNC), regardless or not of whether they are spent under the Rehabilitation of Offenders Act 1974. The law allows for certain old and minor matters to be filtered out;
  • Enhanced: this provides the same information as a standard check, plus any approved information held by the police which a chief officer reasonably believes to be relevant and considers ought to be disclosed; and
  • Enhanced with barred list check: where people are working or seeking to work in regulated activity with children, this allows an additional check to be made as to whether the person appears on the children's barred list.

A more detailed description of the three types of DBS checks is provided on the DBS website.

118.

The DBS maintains 'barred lists' of individuals who are unsuitable to work with children and vulnerable adults[46]. Where barred list information is requested, and 'children's workforce independent schools' is specified in the parameters for that check, the certificate will also detail whether the applicant is subject to a direction made under section 128 of the Education and Skills Act 2008 or section 167A of the Education Act 2002. Such a direction prohibits an individual from taking part in the management (including governors if the governing body is the proprietor body for the school) of independent educational institutions in England and/or Wales respectively, see paragraphs 124-127. A person prohibited under section 128 is also disqualified from holding or continuing to hold office as a governor of a maintained school.

[46] As barred list information is required to be requested only for those school governors who are engaging in regulated activity, when proposing to recruit a governor who will not work in regulated activity, schools and colleges should use the Secure Access Portal to check whether the person is barred as a result of being subject to a section 128 direction. The process for using the Secure Access Portal to make this check is set out in paragraph 130.

119.

Once the checks are complete, the DBS will send a certificate (the DBS certificate) to the applicant. The applicant must show the original DBS certificate to their potential employer before they take up post or as soon as practicable afterwards.

120.

Where a school or college allows an individual to start work in regulated activity before the DBS certificate is available, they should ensure that the individual is appropriately supervised and that all other checks, including a separate barred list check, have been completed.

121.

If a school or college knows or has reason to believe that an individual is barred, it commits an offence if it allows the individual to carry out any form of regulated activity.[47] There are penalties of up to five years in prison if a barred individual is convicted of attempting to engage or engaging in such work.[48]

[47] Section 9, Safeguarding Vulnerable Groups Act 2006.
[48] Section 7, Safeguarding Vulnerable Groups Act 2006.

Prohibitions, directions, sanctions and restrictions

Secretary of State teacher prohibition, and interim prohibition, orders [49] [50]

122.

Teacher prohibition, and interim prohibition, orders prevent a person from carrying out teaching work[51] in schools, sixth form colleges, 16 to 19 academies, relevant youth accommodation and children's homes in England. A person who is prohibited must not be appointed to a role that involves teaching work (see footnote 51).

[49] Prohibition orders are made by the Secretary of State under section 141B of the Education Act 2002. The Teachers' Disciplinary (England) Regulations 2012 apply to schools and sixth form colleges and any person that is subject to a prohibition order is prohibited from carrying out teaching work in those establishments. By virtue of their Conditions of Funding in respect of funding received from the Education and Skills Funding Agency, colleges may not employ or engage a person who is subject to a prohibition order to carry out teaching work.
[50] The School Staffing (England) Regulations 2009, the Non-Maintained Special Schools (England) Regulations 2015 and the Education (Independent School Standards) Regulations 2014 require governing bodies or proprietors (of schools and sixth form colleges) to check that a person to be appointed is not subject to an interim prohibition order. By virtue of their Conditions of Funding in respect of funding received from the Education and Skills Funding Agency, before employing a person to carry out teaching work in relation to children, colleges must take reasonable steps to establish whether that person is subject to a prohibition order made under section 141B of the Education Act 2002.
[51] The Teachers' Disciplinary (England) Regulations 2012 define teaching work as: planning and preparing lessons and courses for pupils; delivering lessons to pupils; assessing the development, progress and attainment of pupils; and reporting on the development, progress and attainment of pupils. These activities are not teaching work for the purposes of these Regulations if the person carrying out the activity does so (other than for the purposes of induction) subject to the direction and supervision of a qualified teacher or other person nominated by the head teacher to provide such direction and supervision.

123.

Teacher prohibition orders are made by the Secretary of State following consideration by a professional conduct panel convened by the TRA. Pending such consideration, the Secretary of State may issue an interim prohibition order if it is considered to be in the public interest to do so. The TRA's role in making prohibition orders and the process used to impose them are described in more detail in its publication Teacher Misconduct: The Prohibition of Teachers.

Secretary of State Section 128 direction

124.

A section 128 direction prohibits or restricts a person from taking part in the management of an independent school, including academies and free schools. A person who is prohibited is unable to participate in any management of an independent school such as:

  • A management position in an independent school, academy or free school as an employee;
  • A trustee of an academy or free school trust; a governor or member of a proprietor body for an independent school; or
  • A governor on any governing body in an independent school, academy or free school that retains or has been delegated any management responsibilities.
125.

The Secretary of State is able to make directions prohibiting individuals from taking part in independent school management under section 128 of the Education and Skills Act 2008. Individuals taking part in 'management" may include individuals who are members of proprietor bodies (including governors if the governing body is the proprietor body for the school), and such staff positions as follows: head teacher, any teaching positions on the senior leadership team, and any teaching positions which carry a department headship. Whether other individuals such as teachers with additional responsibilities could be prohibited from 'taking part in management' depends on the facts of each case.

126.

A section 128 direction disqualifies a person from holding or continuing to hold office as a governor of a maintained school.[52]

[52] School Governance (Constitution) (England) Regs 2012 as amended by the School Governance (Constitution and Federations) England) (Amendment) Regulations 2014.

127.

The grounds on which a section 128 direction may be made by the Secretary of State are found in the relevant regulations.[53]

[53] The Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014.

Historic General Teaching Council for England (GTCE) sanctions and restrictions

128.

There remain a number of individuals who are still subject to disciplinary sanctions, which were imposed by the GTCE (prior to its abolition in 2012).

European Economic Area (EEA) regulating authority teacher sanctions or restrictions

129.

These sanctions and restrictions are imposed by EEA professional regulating authorities on or after 18 January 2016 and which have been notified to the TRA (see also paragraphs 150-151).

How to check for prohibitions, directions, sanctions and restrictions - Teacher Services checking system

130.

Checks for all prohibitions, sanctions and restrictions described at paragraphs 122-129 can be carried out by logging onto the Secure Access/DfE Sign-in Portal via the Teacher Services' web page. Secure Access/DfE Sign-in is a free service available to all schools and colleges. Registration is required for first time users and can be requested from Teacher Services. Further information about using this system to carry out a range of 'teacher status checks'[54] including verification of qualified teacher status (QTS) and the completion of teacher induction or teacher probation can be found at GOV.UK.

[54] The Teacher Services' system can also be used to check for the award of qualified teacher status (QTS) and the completion of teacher induction or probation.

131.

A section 128 direction will also be disclosed where an enhanced DBS check with barred list information is requested, provided that 'children's workforce independent schools' is specified in the parameters for the barred list check.

Childcare disqualification

132.

For staff who work in childcare provision or who are directly concerned with the management of such provision, schools need to ensure that appropriate checks are carried out to ensure that individuals are not disqualified under the 2018 Childcare Disqualification Regulations. Further information on the staff to whom these Regulations apply, the checks that should be carried out, and the recording of those checks can be found in Disqualification under the Childcare Act 2006 statutory guidance.

Pre-appointment checks

All new appointments

133.

Any offer of appointment made to a successful candidate, including one who has lived or worked abroad, must be conditional on satisfactory completion of the necessary pre-employment checks.

134.

When appointing new staff, schools and colleges must (subject to paragraph 136):

  • Verify a candidate's identity. Identification checking guidelines can be found on the GOV.UK website;
  • Obtain (via the applicant) an enhanced DBS certificate (including barred list information, for those who will be engaging in regulated activity);[55] [56] [57]
  • Obtain a separate barred list check if an individual will start work in regulated activity before the DBS certificate is available;
  • Verify the candidate's mental and physical fitness to carry out their work responsibilities.58 A job applicant can be asked relevant questions about disability and health in order to establish whether they have the physical and mental capacity for the specific role;[59]
  • Verify the person's right to work in the UK. If there is uncertainty about whether an individual needs permission to work in the UK, then prospective employers, or volunteer managers, should follow advice on the GOV.UK website;
  • If the person has lived or worked outside the UK, make any further checks the school or college consider appropriate (see paragraph 150); and
  • Verify professional qualifications, as appropriate. The Teacher Services' system should be used to verify any award of qualified teacher status (QTS), and the completion of teacher induction or probation.

In addition:

  • Schools must ensure that a candidate to be employed to carry out teaching work [60] is not subject to a prohibition order issued by the Secretary of State (see footnote 50 for college requirements), or any sanction or restriction imposed (that remains current) by the GTCE before its abolition in March 2012;[61] and
  • Independent schools, including academies and free schools, must check[62] that a person taking up a management position as described at paragraph 125 is not subject to a section 128 direction made by the Secretary of State.

[55] Where the individual will be or is engaging in regulated activity, schools and colleges will need to ensure that they confirm on the DBS application that they have the right to barred list information.
[56] Regulations 12 and 24 of the School Staffing (England) Regulations 2009 for maintained schools also apply to the management committee of pupil referral units through the Education (Pupil Referral Units) (Application of Enactments) (England) Regulations 2007. Part 4 of the Schedule to The Education (Independent School Standards) (England) Regulations 2014 applies to independent schools, including free schools and academies. The Schedule to the Non- Maintained Special Schools (England) Regulations 2015 applies to non-maintained special schools.
[57] Regulation 5 of the Further Education (Providers of Education) (England) Regulations 2006 set out requirements in respect of checks on staff providing education at colleges. For staff members who are providing education and regularly caring for, training, supervising or being solely in charge of persons aged under 18, which would fall within the definition of regulated activity, colleges are required to obtain an enhanced DBS check including a barred list check by virtue of regulations 5(4) and 5(5). Regulation 10 requires that staff moving from a position that does not involve the provision of education into a position involving the provision of education are to be treated as new staff members and, as such, all appropriate checks for the role must be carried out.
[58] Education (Health Standards) (England) Regulations 2003.
[59] Section 60 of the Equality Act 2010.
[60] The Teachers' Disciplinary (England) Regulations 2012 define teaching work as: planning and preparing lessons and courses for pupils; delivering lessons to pupils; assessing the development, progress and attainment of pupils; and reporting on the development, progress and attainment of pupils.
[61] See paragraph 130 for how to carry out this check.
[62] See paragraph 130 for how to carry out this check.

135.

Where an enhanced DBS certificate is required, it must be obtained from the candidate before, or as soon as practicable after, the person's appointment.

136.

There is no requirement for a school to obtain an enhanced DBS certificate or carry out checks for events that may have occurred outside the UK if, during a period which ended not more than three months before the person's appointment, the applicant has worked:

  • In a school in England in a post:
    • Which brought the person regularly into contact with children or young persons; or
    • To which the person was appointed on or after 12th May 2006 and which did not bring the person regularly into contact with children or young persons; or
  • In an institution within the further education sector in England, or in a 16-19 Academy, in a post which involved the provision of education which brought the person regularly into contact with children or young persons.

For a college there is no requirement to obtain an enhanced DBS certificate or carry out checks for events that may have occurred outside the UK if, during a period which ended not more than three months before the person's appointment, the applicant has worked in:

  • A school in England in a position which brought him regularly into contact with persons aged under 18; or
  • Another institution within the further education sector in England, or in a 16 to 19 Academy, in a position which involved the provision of education and caring for, training, supervising or being solely in charge of persons aged under 18.

All other pre-appointment checks must still be completed, including where the individual is engaging in regulated activity, a barred list check. Schools or colleges may also choose to request an enhanced DBS certificate.

137.

The DBS cannot provide barred list information on any person, including volunteers, who are not in or seeking to enter in regulated activity.

DBS Update Service

138.

Individuals can join the DBS Update Service[63] at the point an application for a new DBS check is made, enabling future status checks to be carried out to confirm that no new information has been added to the certificate since its issue. This allows for portability of a certificate across employers. Before using the Update Service, schools or colleges must:

  • Obtain consent from the applicant to do so;
  • Confirm the certificate matches the individual's identity; and
  • Examine the original certificate to ensure that it is for the appropriate workforce and level of check, e.g. enhanced certificate/enhanced including barred list information.

The school or college can subsequently carry out a free online check. This would identify whether there has been any change to the information recorded, since the initial certificate was issued and advise whether the individual should apply for a new certificate. Individuals will be able to see a full list of those organisations that have carried out a status check on their account. Further information about the update service, including when updated information can be used, can be found at GOV.UK.

[63] There is an annual fee for applicants using the update service.


Flowchart of DBS Criminal record checks and barred list checks

Employment history and references

139.

Employers should always ask for written information about previous employment history and check that information is not contradictory or incomplete. The purpose of seeking references is to allow the school or college to obtain objective and factual information to support appointment decisions. References should always be obtained from the candidate's current employer. Where a candidate is not currently employed, verification of their most recent period of employment and reasons for leaving should be obtained from the school, college, local authority or organisation at which they were employed.

140.

References should be scrutinised and any concerns resolved satisfactorily, before the appointment is confirmed, including for any internal candidate. Obtaining references before interview, would allow any concerns they raise to be explored further with the referee and taken up with the candidate at interview. They should always be requested directly from the referee and preferably from a senior person with appropriate authority, not just a colleague. Employers should not rely on open references, for example in the form of 'to whom it may concern' testimonials, nor should they only rely on information provided by the candidate as part of the application process without verifying that the information is correct. Where electronic references are received, employers should ensure they originate from a legitimate source.

141.

On receipt, references should be checked to ensure that all specific questions have been answered satisfactorily. The referee should be contacted to provide further clarification as appropriate, for example if the answers are vague or if insufficient information is provided. They should also be compared for consistency with the information provided by the candidate on their application form. Any discrepancies should be taken up with the candidate.

142.

Any information about past disciplinary action or allegations that are disclosed should be considered carefully when assessing the applicant's suitability for the post (including information obtained from the Teacher Services' checks referred to previously). Further help and advice can be found on the Advisory, Conciliation and Arbitration Service (ACAS) website.

Single central record

143.

Schools and colleges must maintain a single central record of pre-appointment checks, referred to in the Regulations (listed in paragraph 148) as the register and more commonly known as the single central record. For requirements for schools in Multi- academy trusts (MATs), see paragraph 147. The single central record must cover the following people:

  • All staff, including teacher trainees on salaried routes (see paragraph 154), agency and third party supply staff (see paragraph 152) who work at the school. In colleges, this means those providing education to children; and
  • For independent schools, all members of the proprietor body. In the case of academies and free schools, this means the members and trustees of the academy trust.
144.

The bullet points below set out the minimum information that must be recorded in respect of staff members (including teacher trainees on salaried routes). The single central record must indicate whether the following checks have been carried out or certificates obtained, and the date on which each check was completed/certificate obtained:

  • An identity check. Identification checking guidelines can be found on the GOV.UK website;
  • A barred list check;
  • An enhanced DBS check/certificate;
  • A prohibition from teaching check;[64]
  • Further checks on people who have lived or worked outside the UK (see paragraphs 150-151); this would include recording checks for those European Economic Area (EEA) teacher sanctions and restrictions described in paragraph 129;
  • A check of professional qualifications, where required; and
  • A check to establish the person's right to work in the United Kingdom.

In addition:

  • Colleges must record whether the person's position involves 'relevant activity', i.e. regularly caring for, training, supervising or being solely in charge of persons aged under 18; and
  • A section 128 check (for management positions as set out in paragraph 124-125 for independent schools (including academies and free schools).

[64] There is no requirement for colleges to record this information, however, as part of the funding agreement colleges must have robust record keeping procedures in place.

145.

For agency and third party supply staff, schools and colleges must also include whether written confirmation has been received that the employment business supplying the member of supply staff has carried out the relevant checks and obtained the appropriate certificates, and the date that confirmation was received and whether any enhanced DBS certificate check has been provided in respect of the member of staff.[65]

[65] Independent schools and non-maintained special schools should also include the date on which any certificate was obtained.

146.

Whilst there is no statutory duty to include on the single central record details of any other checks, schools and colleges are free to record any other information they deem relevant. For example, checks for childcare disqualification, volunteers, and safeguarding and safer recruitment training dates. Schools and colleges may also wish to record the name of the person who carried out each check.

The single central record can be kept in paper or electronic form.

147.

MATs must maintain the single central record detailing checks carried out in each academy within the MAT. Whilst there is no requirement for the MAT to maintain an individual record for each academy, the information should be recorded in such a way that allows for details for each individual academy to be provided separately, and without delay, to those entitled to inspect that information, including by inspectors described at paragraph 88.

148.

Details of the records that must be kept are set out in the following Regulations:

[66] 16-19 academies and free schools are covered through their funding agreements.

149.

Schools and colleges do not have to keep copies of DBS certificates in order to fulfil the duty of maintaining the single central record. To help schools and colleges comply with the requirements of the Data Protection Act 2018, when a school or college chooses to retain a copy, it should not be retained for longer than six months. A copy of the other documents used to verify the successful candidate's identity, right to work and required qualifications should be kept for the personnel file. Further information on handling DBS certificate information can be found on GOV.UK.

Individuals who have lived or worked outside the UK

150.

Individuals who have lived or worked outside the UK must undergo the same checks as all other staff in schools or colleges. In addition, schools and colleges must make any further checks they think appropriate so that any relevant events that occurred outside the UK can be considered. The Home Office guidance on criminal records checks for overseas applicants can be found on GOV.UK. These further checks should include a check for information about any teacher sanction or restriction that an EEA professional regulating authority has imposed, using the TRA Teacher Services' system. See paragraph 130 for further information on using this service. Although restrictions imposed by another EEA regulating authority do not prevent a person from taking up teaching positions in England, schools and colleges should consider the circumstances that led to the restriction or sanction being imposed when considering a candidate's suitability for employment.

151.

The department has issued guidance on the employment of overseas - trained teachers. This gives information on the requirements for overseas-trained teachers from the EEA to teach in England, and the award of qualified teacher status for teachers qualified in Australia, Canada, New Zealand and the United States of America.

Agency and third-party staff (supply staff)

152.

Schools and colleges must obtain written notification from any agency, or third- party organisation they use that the organisation has carried out the checks (in respect of the enhanced DBS certificate, written notification that confirms the certificate has been obtained by either the employment business or another such business), on an individual who will be working at the school or college that the school or college would otherwise perform.[67]

[67] Colleges must comply with regulations 11 to 19 of The Further Education (Providers of Education) (England) Regulations 2006 in respect of agency workers; maintained schools must comply with regulations 18 and 30 of the School Staffing (England) Regulations 2009; non-maintained special schools must comply with paragraphs 5 and 16 of the Schedule to The Non-Maintained Special Schools (England) Regulations 2015; and independent schools (including academies and free schools) must comply with paragraph 19 of the Schedule to The Education (Independent School Standards) Regulation 2014.

153.

Where the position requires a barred list check, this must be obtained by the agency or third party prior to appointing the individual. The school or college must also check that the person presenting themselves for work is the same person on whom the checks have been made.

Trainee/student teachers

154.

Where applicants for initial teacher training are salaried by the school or college, the school or college must ensure that all necessary checks are carried out. As trainee teachers are likely to be engaging in regulated activity, an enhanced DBS certificate (including barred list information) must be obtained.

155.

Where trainee teachers are fee-funded, it is the responsibility of the initial teacher training provider to carry out the necessary checks. Schools and colleges should obtain written confirmation from the provider that it has carried out all pre-appointment checks that the school or college would otherwise be required to perform, and that the trainee has been judged by the provider to be suitable to work with children.[68] There is no requirement for the school to record details of fee-funded trainees on the single central record.

[68] Teaching Regulation Agency (TRA) - Initial teacher training provider supporting advice and initial teacher training criteria.

Existing staff

156.

If a school or college has concerns about an existing staff member's suitability to work with children, the school or college should carry out all relevant checks as if the person were a new member of staff. Similarly, if a person working at the school or college moves from a post that was not regulated activity into work which is considered to be regulated activity, the relevant checks for that regulated activity must be carried out.[69] For colleges, an individual moving from a position that did not involve the provision of education to one that does must be treated as if that individual were a new member of staff and all required pre-appointment checks must be carried out (see paragraph 134). Apart from these circumstances, the school or college is not required to request a DBS check or barred list check.

[69] Schools and colleges will wish to consider the offence of allowing individuals to engage in regulated activity whilst barred. It is intended that, at a date to be announced, any regulated activity provider will have a duty to request a barred list check before allowing any individuals to engage in regulated activity (section 34ZA Safeguarding Vulnerable Groups Act 2006) and for it to be possible to obtain such a check independently from the enhanced check from the DBS.

157.

Schools and colleges have a legal duty to refer to the DBS anyone who has harmed, or poses a risk of harm, to a child or vulnerable adult where:

  • The harm test is satisfied in respect of that individual;
  • The individual has received a caution or conviction for a relevant offence, or if there is reason to believe that the individual has committed a listed relevant offence; and
  • The individual has been removed from working (paid or unpaid) in regulated activity, or would have been removed had they not left.[70]
[70] The list of offences is set out in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009 No. 37) (amended).
158.

The DBS will consider whether to bar the person. Detailed guidance on when to refer to the DBS, and what information must be provided, can be found on GOV.UK.

159.

Referrals should be made as soon as possible, and ordinarily on conclusion of an investigation, when an individual is removed from working in regulated activity, which could include being suspended, or is redeployed to work that is not regulated activity (see paragraphs 234-235 for referral in dismissal or resignation situations).

160.

Where a teacher's employer, including an agency, dismisses or ceases to use the services of a teacher because of serious misconduct, or might have dismissed them or ceased to use their services had they not left first, they must consider whether to refer the case to the Secretary of State, as required by sections 141D and 141E of the Education Act 2002. The Secretary of State may investigate the case, and if s/he finds there is a case to answer, must then decide whether to make a prohibition order in respect of the person see paragraphs 122-123.[71] How to refer can be found on GOV.UK.

[71] Sections 141D and 141E of the Education Act 2002 do not apply to colleges (other than sixth form colleges).

Volunteers

161.

Under no circumstances should a volunteer in respect of whom no checks have been obtained be left unsupervised or allowed to work in regulated activity.

162.

Volunteers who, on an unsupervised basis teach or look after children regularly, or provide personal care on a one-off basis in schools and colleges, will be in regulated activity. The school or college should obtain an enhanced DBS certificate (which should include barred list information) for all volunteers who are new to working in regulated activity. Existing volunteers in regulated activity do not have to be re-checked if they have already had a DBS check (which includes barred list information). However, schools and colleges may conduct a repeat DBS check (which should include barred list information) on any such volunteer should they have concerns.

163.

There are certain circumstances where schools and colleges may obtain an enhanced DBS certificate (not including barred list information), for volunteers who are not engaging in regulated activity. This is set out in DBS workforce guides, which can be found on GOV.UK. Employers are not legally permitted to request barred list information on a supervised volunteer as they are not considered to be engaged in regulated activity.

164.

The school or college should undertake a risk assessment and use their professional judgement and experience when deciding whether to obtain an enhanced DBS certificate for any volunteer not engaging in regulated activity. In doing so they should consider:

  • The nature of the work with children;
  • What the establishment knows about the volunteer, including formal or informal information offered by staff, parents and other volunteers;
  • Whether the volunteer has other employment or undertakes voluntary activities where referees can advise on suitability;
  • Whether the role is eligible for an enhanced DBS check; and Details of the risk assessment should be recorded. [72]

[72] Schools and colleges are free to determine where to store this information.

165.

It is for schools and colleges to determine whether a volunteer is considered to be supervised. In making this decision, and where an individual is supervised, to help determine the appropriate level of supervision schools must have regard to the statutory guidance issued by the Secretary of State (replicated at Annex F). This guidance requires that, for a person to be considered supervised, the supervision must be:

  • By a person who is in regulated activity;[73]
  • Regular and day to day; and
  • Reasonable in all the circumstances to ensure the protection of children."

[73] It should be noted that if the work is in a specified place such as a school, paid workers remain in regulated activity even if supervised.

166.

The DBS cannot provide barred list information on any person, including volunteers, who are not in, or seeking to engage in regulated activity.

Maintained school governors

167.

Governors in maintained schools are required to have an enhanced criminal records certificate from the DBS.[74] It is the responsibility of the governing body to apply for the certificate for any of their governors who do not already have one. Governance is not a regulated activity and so governors do not need a barred list check unless, in addition to their governance duties, they also engage in regulated activity.

[74] The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016.

Sixth form college governors

168.

Governing bodies in sixth form colleges can request an enhanced DBS certificate without a barred list check on an individual as part of the appointment process for governors. An enhanced DBS certificate (which will include a barred list check) should only be requested if the governor will be engaging in regulated activity. This applies equally to volunteer governors who will be engaging in regulated activity and should be treated on the same basis as other volunteers in this respect.

Proprietors of independent schools, including academies and free schools and proprietors of alternative provision academies[75]

169.

Before an individual becomes either the proprietor of an independent school or the chair of a body of people which is the proprietor of an independent school, the Secretary of State will: [76][77]

  • Carry out an enhanced DBS check; and where such a check is made, obtain an enhanced DBS certificate (either including or not including barred list information as appropriate);[78]
  • Confirm the individual's identity; and
  • If the individual lives or has lived outside of the UK, where making an enhanced check is insufficient, such other checks as the Secretary of State considers appropriate.

The Secretary of State also undertakes these checks in respect of the chair of governing bodies of non-maintained special schools.[79]

170.

The requirement for an enhanced DBS check and certificate is disapplied for the chair of an academy trust if the academy is converting from a maintained school and the person has already been subject to a check carried out by the local authority.[80]

[75] The proprietor of an academy or free school or alternate provision academy or free school is the academy trust.
[76] Paragraph 20 of the Schedule to the Education (Independent School Standards) Regulations 2014.
[77] This will include an academy trust of any academy or free school, other than for 16 – 19 academies or free schools. 78 Regulation 2(5) of the Education (Independent School Standards) Regulations 2014 sets out when such checks are considered relevant.
[79] Paragraphs 6 and 17 of the Schedule to The Non-Maintained Special Schools (England) Regulations 2015.
[80] Paragraph 20(7) of the Schedule to the Education (Independent School Standards) Regulations 2014.

171.

Where the proprietor is a body of people (including a governing body in an academy or free school), the chair must ensure that enhanced DBS checks are undertaken, for the other members of the body and that where such a check has been undertaken, an enhanced DBS certificate is obtained, and that identity checks are completed before, or as soon as practicable after, any individual takes up their position. The chair must also ensure that other members are not subject to a section 128 direction that would prevent them from taking part in the management of an independent school (including academies and free schools). Further checks, as the chair considers appropriate, should be undertaken where, by reason of the individual's living or having lived overseas, obtaining an enhanced DBS certificate is not sufficient to establish his or her suitability to work in a school.

172.

In the case of an academy trust, including those established to operate a free school, the trust must require enhanced DBS checks on all members of the academy trust, individual charity trustees, and the chair of the board of charity trustees.[81] Academy trusts, including those established to run a free school, have the same responsibilities as all independent schools in relation to requesting enhanced DBS certificates for permanent and supply staff.[82] Where an academy trust delegates responsibilities to any delegate or committee (including a local governing body), the trust must require DBS checks on all delegates and all member of such committees.[83] Academy trusts must also check that members are not barred from taking part in the management of the school as a result of a section 128 direction (see paragraph 124).

[81] As required in the funding agreement.
[82] The Education (Independent School Standards) Regulations 2014. The regulations do not apply to 16-19 free schools and academies.
[83] As required in an academy trust's articles of association.

Contractors

173.

Schools and colleges should ensure that any contractor, or any employee of the contractor, who is to work at the school or college, has been subject to the appropriate level of DBS check. Contractors engaging in regulated activity will require an enhanced DBS certificate (including barred list information). For all other contractors who are not engaging in regulated activity, but whose work provides them with an opportunity for regular contact with children, an enhanced DBS check (not including barred list information) will be required.[84] In considering whether the contact is regular, it is irrelevant whether the contractor works on a single site or across a number of sites.

[84] It will only be possible to obtain an enhanced DBS certificate for contractors in colleges which are exclusively or mainly for the provision of full-time education to children.

174.

Under no circumstances should a contractor in respect of whom no checks have been obtained be allowed to work unsupervised, or engage in regulated activity. Schools and colleges are responsible for determining the appropriate level of supervision depending on the circumstances.

175.

If an individual working at a school or college is self-employed, the school or college should consider obtaining the DBS check, as self-employed people are not able to make an application directly to the DBS on their own account.

176.

Schools and colleges should always check the identity of contractors and their staff on arrival at the school or college.

Visitors

177.

Schools and colleges do not have the power to request DBS checks and barred list checks, or ask to see DBS certificates, for visitors (for example children's relatives or other visitors attending a sports day). Headteachers and principals should use their professional judgment about the need to escort or supervise visitors.

Alternative Provision

178.

Where a school places a pupil with an alternative provision provider, the school continues to be responsible for the safeguarding of that pupil, and should be satisfied that the provider meets the needs of the pupil. Schools should obtain written confirmation from the alternative provider that appropriate safeguarding checks have been carried out on individuals working at the establishment, i.e. those checks that the school would otherwise perform in respect of its own staff.

Adults who supervise children on work experience

179.

Schools and colleges organising work experience placements should ensure that the placement provider has policies and procedures are in place to protect children from harm.[85]

[85] Guidance on work experience.

180.

Barred list checks by the DBS might be required on some people who supervise a child under the age of 16 on a work experience placement.[86] The school or college should consider the specific circumstances of the work experience. Consideration must be given in particular to the nature of the supervision and the frequency of the activity being supervised, to determine what, if any, checks are necessary. These considerations would include whether the person providing the teaching/training/instruction/supervision to the child on work experience will be:

  • Unsupervised themselves; and
  • Providing the teaching/training/instruction frequently (more than three days in a 30 day period, or overnight).

[86] Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012, which came into force on 10 September 2012.

181.

If the person working with the child is unsupervised and the same person is in frequent contact with the child, the work is likely to be regulated activity. If so, the school or college could ask the employer providing the work experience to ensure that the person providing the instruction or training is not a barred person.

182.

Schools and colleges are not able to request an enhanced DBS check with barred list information for staff supervising children aged 16 to 17 on work experience.[87]

[87] The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was amended by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012 so that employers may no longer request checks in these circumstances.

183.

If the activity undertaken by the child on work experience takes place in a 'specified place', such as a school or college, and gives the opportunity for contact with children, this may itself be considered to be regulated activity. In these cases and where the child is 16 years of age or over, the work experience provider should consider whether a DBS enhanced check should be requested for the child/young person in question. DBS checks cannot be requested for children/young people under the age of 16.[88]

[88] Under the Police Act 1997, an individual must be 16 or over to be able to make an application for a DBS check.

Children staying with host families (homestay)

184.

Schools and colleges quite often make arrangements for their children to have learning experiences where, for short periods, the children may be provided with care and accommodation by a host family to whom they are not related. This might happen, for example, as part of a foreign exchange visit or sports tour, often described as 'homestay' arrangements (see Annex E for further details). In some circumstances the arrangement where children stay with UK families could amount to "private fostering" under the Children Act 1989 see paragraphs 185-186 for further information about action that should be taken to alert the local authority in those circumstances.

Private fostering- LA notification when identified

185.

Private fostering[89] occurs when a child under the age of 16 (under 18, if disabled) is provided with care and accommodation by a person who is not a parent, person with parental responsibility for them or a relative in their own home. A child is not privately fostered if the person caring for and accommodating them has done so for less than 28 days and does not intend to do so for longer. Such arrangements may come to the attention of school staff through the normal course of their interaction, and promotion of learning activities, with children.

[89] Part 9 of the Children Act 1989.

186.

The school or college should then notify the local authority to allow the local authority to check the arrangement is suitable and safe for the child.

187.

A link to comprehensive guidance on private fostering can be found at Annex A of this guidance.