TRA and DBS referrals demystified

This blog is based on Judicium’s Safeguarding & HR ‘Sofa Session’ from the 29th January 2025, with our resident experts Sarah Cook and Jenny Salero.
Poll 1
Overview of a Disciplinary Process
When talking about DBS and TRA referrals we are talking about serious concerns, for which a full disciplinary process will need to be undertaken.
This process will be required for all concerns that cannot be addressed by what we would refer to as management guidance, i.e. and informal discussion, or perhaps where you have had said discussion, but there has not been a change or improvement in the behaviour or conduct.
When we are talking about disciplinary procedures we are talking about someone’s conduct, rather than their performance. Examples can be wide ranging – from low level concerns such a time keeping, right through to very serious concerns, that if proved, would amount to gross misconduct (and may potentially be criminal) such as sexual harassment. Of course not all disciplinary procedures will warrant a referral to the TRA or DBS – and we hope these are few and far between. However, it is always best to be prepared for the worst case scenario.
Within a disciplinary process there are three key stages:
- Investigation
- Hearing
- Appeal
However, the process is not always linear!
We would always advise, before you launch into a full process that you undertake a preliminary/informal fact finding investigation – i.e. is there CCTV that can be viewed? Are there some witnesses? We do not want to go in ‘all guns blazing’ with a formal process, if there has just been a misunderstanding - so please do always pause before you launch straight in.
If, following your preliminary investigation, you believe there is some evidence of a concern, that cannot be dealt with by a management conversation, that is when the need to consider a formal investigation kicks in. There are some minor exceptions to this, such as short serving staff and those within probationary periods, but we won’t focus on these today. If you decide a formal process is required, you will need to consider who is best place to investigate. It should be a party that is impartial and has no prior knowledge of the matter – this is usually a member of SLT, but can be Governor or Trustee or a third party like Judicium. You should also consider whether the concerns give rise to the need to suspend the colleague.
Suspension should not be used as a knee jerk response and alternatives to this should always be considered, but if we are talking about matters where a TRA/DBS referral may be required it is likely that a suspension will be needed.
Employees are usually suspended in the following circumstances:
- The concern may amount to gross misconduct;
- There is a serious safeguarding concern and/or
- There are concerns about the impartiality of the investigation.
A recent example of a case we had was of this where a number of boxes were ticked, was a member of staff that told a racist joke to a pupil with additional needs, after the preliminary investigation the member of staff then approached the pupil to in effect ‘threaten’ him not to say anything.
Before the investigation gets underway consideration should be given to suspension to decide whether this appropriate. The person that is appointed as investigating officer will then need to proceed with their investigation, looking at the areas they have been asked to investigate by the School. How long this takes is like asking ‘how long is a piece of string?’ This will very much depend on the nature and the circumstances of the concerns, but things that can influence this stage include:
- Whether the Police have given you the ‘go ahead’ – any criminal investigation will of course be prioritised over an internal investigation.
- The number of parties to be interviewed.
- If the employee is fit to attend.
- If the employee raises a grievance (or uses another common stalling tactic to avoid attendance).
Once the investigation is complete the IO will need to prepare an investigation report – this can be in any format, there is no ‘legally correct’ way to do this. However, as we will come on to, this is crucial for both the internal process, but any later referral to the DBS that this is a detailed summary of the steps take and the findings. In addition, the IO will need to make a decision as to whether they find on balance there is a case to answer or there is not. The IO should not make a recommendation on the potential sanction – this is not their decision, but one for the decision maker or decision making Panel that will hear the matter at the disciplinary hearing.
At a disciplinary hearing it will be the job of the decision maker/makers to hear from both the investigating officer, the employee and consider all the relevant evidence. At the hearing their role will be to consider:
- Is there evidence to prove each of the allegation on balance?
- If so, what is the appropriate sanction?
- It is only after that point that consideration of a referral to the DBS/TRA may be considered. This will usually be completed by the Head/Principal following the decision at the hearing – from a practical point of view they are best equipped to provide a full overview of the process.
DBS
The DBS (Disclosure and Barring Service) is a government agency that helps employers make safer recruitment decisions by identifying individuals who may be unsuitable to work with children or vulnerable adults. Their role is crucial in ensuring that individuals who pose a risk are not able to work in roles where they have access to vulnerable groups.
So, what exactly does the DBS do?
They maintain the Barred Lists—essentially a list of individuals who are prohibited from working in roles involving children or vulnerable adults. The two primary lists they maintain are:
- The Children's Barred List – for those barred from working with children.
- The Adults' Barred List – for those barred from working with vulnerable adults.
Who can make a referral?
Any organisation can make a referral if they consider that someone has:
- Harmed or poses a risk of harm to a child or adult and satisfies the harm test (see later section)
- Received a caution or conviction for a relevant offence.
- In some situations, you have a legal duty to make a referral to the DBS
Regulated activity providers (employers or volunteer managers of people working in regulated activity) and employment agencies have a legal duty to refer to the DBS where the referral conditions are met. This applies even when a referral has also been made by another agency or organisation.
But when would schools need to make a referral?
School’s colleges and childcare providers must make a referral when both of the following conditions have been met:
Condition 1
You withdraw permission for a person to engage in regulated activity with children and/or vulnerable adults. Or you move the person to another area of work that isn’t regulated activity. This includes situations when you would the person was re-deployed, or they resigned, retired, or left.Condition 2
You think the person has carried out 1 of the following:- Engaged in relevant conduct in relation to children and/or adults. An action or inaction has harmed a child or vulnerable adult or put them at risk or harm or;
- Satisfied the harm test in relation to children and / or vulnerable adults. eg there has been no relevant conduct but a risk of harm to a child or vulnerable still exists.or
- Been cautioned or convicted of a relevant offence
What is relevant conduct and what do you mean by the harm test?
A child is a person under 18 years of age.
Relevant conduct relating to a child is conduct that endangers a child or is likely to endanger a child or that, if repeated against or in relation to a child, would endanger the child or be likely to endanger the child.
Relevant conduct can also include conduct which involves sexual material relating to children or sexually explicit images depicting violence against human beings (including possession of these images)
Or any conduct that is of a sexual nature involving a child
We often talk about the “harm test”. However, what constitutes “harm” is not defined in legislation. DBS view harm as its common understanding or the definition you may find in a dictionary. A person satisfies the harm test if they may harm a child or put them at risk of harm. It is something a person may do to cause harm or pose a risk of harm to a child.
So that could look like:
- Sexual offences or inappropriate relationships with a child.
- Physical abuse or violence towards a child.
- Neglect or failure to protect a child from harm.
- Grooming behaviour; or
- Any action posing a serious risk to safety.
It’s important to remember that you don’t need conclusive proof before making a referral. If you have reasonable grounds to believe that an individual has engaged in harmful behaviour, you should make a referral.
What are some of the common myths about DBS referrals?
"I only need to refer if there’s a criminal conviction." Nope—referrals should be based on safeguarding concerns, not just convictions.
"If the person resigns, I don't have to refer them." Not true—if you would have dismissed them, you still need to refer.
"Only big organisations have to refer." Wrong—every employer working in regulated activity has a legal duty.
"The Local Authority Designated Officer (LADO) decides if I refer." Actually, while the LADO may give advice, the responsibility lies with you.
"The DBS will investigate everything themselves." Not quite—they rely entirely on the information you provide.
"I can’t refer someone if the incident happened outside of work." False—if you become aware of concerns that impact an individual’s suitability to work with vulnerable groups, you should refer.
How does the referral process work?
Making a referral is straightforward. You can submit a form online via the DBS website, which guides you through the required information and documentation. It's a good idea to gather all relevant information beforehand to ensure your referral is as thorough as possible.
The process usually goes like this:
- You submit the referral with all your evidence.
- The DBS checks if it meets their criteria.
- If it does, they review the case and might ask for more information.
- A final decision is made on whether to add the person to the Barred List.
Remember, the DBS doesn’t conduct their own investigation. They rely entirely on what you provide, such as:
- Internal investigation reports.
- Witness statements.
- Disciplinary hearing outcomes.
- Safeguarding reports.
- Any correspondence relating to the concerns; and
- Any previous concerns or patterns of behaviour.
What Happens next?
If someone is placed on the Barred List, they do have the right to appeal through an independent tribunal. The appeal process can take several months, and during this time, the individual remains barred.
What happens if I don’t refer?
Failing to make a referral when required can have serious consequences including legal action, and potential reputational damage to your organisation.
Depending on the situation, you may need to refer to both the DBS and the TRA. For example, for safeguarding concerns related to abuse, while professional misconduct without direct harm might be better suited for the TRA.
TRA
The TRA now stands for the Teaching Regulation Agency and is responsible for regulating the profession England and essentially oversees the profession. In 2012 regulations were created and apply to all those carrying out teaching work and covers:
- All schools;
- Sixth form colleges;
- Children’s homes and
- Youth accommodation.
Both employers and members of the public (after having utilised the disciplinary/complaints procedure respectively or where a colleague has resigned) can make a referral to the TRA.
The TRA want to hear about ‘serious misconduct’ that could result in the teacher being unable to teach again. This is defined as when behaviour is:
- Fundamentally incompatible with being a teacher and
- Could lead them to being prohibited from teaching.
Some examples of this include:
- Sexual misconduct – including assault, abuse or harassment;
- Violent behaviour;
- Serious failure to protect the safety and wellbeing of pupils;
- Alcohol or drug misuse;
- Fraud of dishonesty;
- Discrimination or harassment; or
- Promoting extreme political or religious views.
The TRA will not concern itself with less serious misconduct, incompetence or poor performance – these concerns need to be dealt with internally, via separate procedures. Referrals to the TRA are slightly easier and more straight forward that a DBS referral. The criteria in my mind is less stringent and therefore the test and internal decision making process as to whether to make a referral is slightly easier. There is a very easy form online that is clearly marked ‘for employers’ which sets out what information is required for a referral, along with key details and documents.
The investigation and disciplinary documents from your internal process will be very important here. However, unlike the DBS the TRA will undertake their own investigation into the concerns reported – they will not rely solely on the information provided by the employer.
The process will be very similar to that of an disciplinary process:
- TRA will receive a referral and will conduct the equivalent of a preliminary investigation and decision whether to continue or take no further action.
- If they decide to proceed the employee will be informed, then sent all of the information gathered and given an opportunity to respond.
- All the information will be considered by a decision maker at the TRA and if the decision maker considers the misconduct potentially serious enough, a professional conduct Panel will hear the matter – this is where is becomes a little more, like a judicial process as there are strict deadlines and time frames for both parties to comply with.
- A teacher (or someone that has been a teacher in the previous 5 years)
- A lay person - specially not from the teaching profession and
- The third person may be a person who has taught previously but does not meet the ‘teacher’ criteria.
The Panel will, after a number of procedural steps, very similar to a judicial process i.e. the opportunity for the individual to accept the misconduct and swapping of all information etc meet to hear all the information and make a decision as to whether the facts have been proved and if so, whether the allegations amount to one or more of the following categories of serious misconduct:
- Unacceptable professional conduct;
- Conduct that may bring the profession into disrepute; and/or
- A conviction at any time of a relevant offence.
It is possible to make a referral to both the DBS and TRA, but also the TRA independently of the DBS. For example referrals have been made to the TRA in the past for exam malpractice, this is unlikely to be something the DBS would concern themselves with.
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