Updated guidance from the Department for Education regarding Disqualification

As a result of the high volume of complaints and criticisms which followed the DfE guidance issued in October 2014 regarding the Childcare Act 2006 and specifically the implications of the disqualification sections, the DfE have recently issued new guidance.

Thankfully this new guidance covers many of the issues which were either not made clear, or not covered at all under the previous guidance. It limits the scope of those individuals who may be caught by the legislation and ensures greater certainty for Schools when determining whether an individual is disqualified or disqualified by association.

We have highlighted the points we believe you will need to know below.

Which employees are covered?

To start with the area we believe most of you would be interested in, we are happy to confirm that clarity has been given and many of your staff may not be caught by this legislation.

The employees who are caught are the following (“Relevant Settings”): -

• Any employee providing any care for a child from birth until 1 September following a child’s fifth birthday, which is likely to be those children up to and including reception age. In practice this will be your staff who provide education in nursery and reception classes and/or any supervised activity for these children which occurs during or outside the school hours, such as breakfast clubs, lunchtime supervision and after school care provided by the School.
• For schools who have children aged between 5 and 8 years old, your staff will only be caught if they provide childcare outside of school hours. This means that your staff will only be caught if you offer any breakfast club or after schools provision for children within this age bracket. For the avoidance of doubt therefore, it does not include staff who teach these children during the school day, nor does it include any extended school hours for co-curricular learning activities such as the School’s choir or a sports team.
• Any staff directly concerned with the management of the above childcare. You will need to use your judgement to determine who is covered, but this will include the Headteacher, and may also include other members of the school’s leadership team and any manager, supervisor, leader to volunteer responsible for the day to day management of the provision.

What to do if an employee is disqualified?

Thankfully the new guidance confirms that you can redeploy your employee while waiting for a waiver from Ofsted. This means that your employee could work with children aged 6 and 7 provided they are not working with them in childcare provisions outside the normal school hours. Alternatively, they could be redeployed to the office team, site team, catering team, cleaning team or any other role not involving childcare.

If an employee who is disqualified decides not to apply for a waiver, or if a waiver is declined, you will need to consider permanent redeployment outside ‘childcare’ before considering dismissal.

Spent convictions

Your employees are required to declare spent relevant convictions or cautions; however, they have no duty to declare any spent convictions or cautions, reprimands or warnings issued to anyone that they live with. This should be made clear to your employees.

Compliance with the Data Protection Act

You must ensure that all information being requested is relevant. We have prepared a declaration form which draws directly from the guidance and ensures only relevant information is requested.

You must obtain the consent of any third party (being household members) to hold their data.

Stored information should be kept to a minimum and be accurate. It must only be stored for the minimum period of time necessary. Once you no longer have need for the declaration forms and/or any supporting information, for example once you have recorded the information on your single central record or in any separate record and/or once any waiver process has completed appropriate steps stake you must destroy the information.

It is important that you do not ask your employees or anyone that they live with to make a request for their criminal records as this could breach the DPA.

If any information is provided which is irrelevant or was provided in error, this should be immediately destroyed.

Please contact Judicium Education if you'd like to discuss this matter in more detail