Introduced in 2006, ‘disqualification by association’ meant that any individual applying to work with young children, who lived with a person convicted of certain crimes, had to apply to Ofsted for a waiver.
However, with many considering these rules to be confusing and unfair, the government launched a consultation on the issue that eventually resulted in an update to the guidance that came into force on 31st August this year.
The new guidance removes the requirement for nurseries and schools to ascertain conviction and other relevant information about people living with their staff.
Until now, any such convictions would have led to staff being disqualified from childcare ‘by association’ – an outcome that never made any sense for those working in education settings.
It’s a change that should ultimately make life easier for schools, though they will need to follow these five steps:
1. Update staff briefing scripts
Some schools still ask staff to complete forms to confirm that they aren’t disqualified. With the guidance no longer requiring this, continuing the practice can cause an unnecessary administrative burden and lead to schools obtaining information about staff to which they’re not entitled.
Instead of a form, use a staff briefing script that sets out what staff need to tell you, and that it’s their responsibility to keep you updated if their circumstances change.
2. Revise employment contracts
If you don’t already, make sure you include a clause in your staff contracts requiring staff to update you if their circumstances change. Update any existing clauses that reference ‘disqualification by association’.
3. Amend agency staff communications
Up to now, you should have been asking agencies and third-party organisations that supply staff for confirmation that disqualification checks have been made. Review your wording and remove any ‘disqualification by association’ references.
4. Update your policies
Child protection policies (and possibly others) will refer to disqualification from childcare, so it’s important to redraft the relevant sections to bring them in line with the new guidance.
5. Review your current disqualifications
If you have staff awaiting a waiver, their disqualification will have ceased on 31 August, meaning they can return to a childcare role without requiring one. It should also be noted that ‘disqualification’ doesn’t have to lead to suspension – the guidance specifically allows for staff to be moved into other roles in the school, if suitable.
Dai Durbridge is a partner at the national law firm Browne Jacobson, providing schools with legal advice and training on pastoral education issues.
