No duty of care to staff or students when making safeguarding disclosures to the police

Safeguarding concerns are often fraught with fear about the extent of any requirement to disclose information to third parties, such as statutory agencies and potential employers.  Institutions worry that they disclose too much or sometimes too little.  On 22 July 2014 the High Court clarified that those fears are at least unjustified in relation to disclosures to the police and to the Disclosure and Barring Service (DBS).  The High Court concluded that the former employer of a teacher did not owe that teacher a duty of care when making safeguarding disclosures to those statutory agencies.

Broadly paraphrased, governing bodies of schools and FE colleges have a duty to promote and safeguard the welfare of children receiving education or training at the institution (Education Act 2002 s175).  Further, schools, FE colleges and universities have a duty to report to the DBS cases where they have withdrawn permission for staff or students to engage in a regulated activity relating to children where there is a risk of harm to children i.e. where a person has been dismissed/withdrawn in such circumstances or would have been dismissed/withdrawn had he/she not resigned or withdrawn him/herself. Institutions also have a duty to provide information to the DBS when requested to do so for the purposes of considering whether to include a person in the list of those barred from working with children (or vulnerable adults).

In the recent case of Melik Camurat -v- Thurrock Borough Council [2014] EWHC 2482 (QB), Mr C was the subject of a series of allegations relating to the inappropriate use of force in his dealings with pupils. There were no allegations of sexual impropriety. Disciplinary proceedings culminated in the issue of a final written warning to Mr C which would expire after 12 month in September 2009.  Following negotiations with the school, a settlement agreement was concluded between Mr C and Thurrock Borough Council (the local authority employer) which included, at schedule 2, a standard reference for Mr C that was generally positive, except for disclosing that Mr C had to be given additional advice about his “interactions with some pupils”.  It also disclosed the fact that he had received a final written warning relating to the confiscation of a pupil’s mobile phone. 

Further, clause 10 of the settlement agreement provided as follows:

Any written reference which any third party may request the Employer to give in relation to the Employee will be in the terms set out in schedule 2. Any reference given orally will be consistent with the terms and spirit of the
agreed reference…”

Mr C’s employment with the school ended on 31 December 2008.

Subsequently the vetting unit of Essex police requested that the local authority provide a chronology detailing the history of Mr C’s disciplinary problems during his employment with the school. The local authority provided a chronology that had been drafted to assist a disciplinary panel. That chronology was reproduced in an Enhanced Criminal Record Certificate (ECRC), which ultimately caused Mr C to be dismissed from his new employment, notwithstanding that the ECRC was otherwise clear of convictions and conviction-related information.  Mr C invoked the statutory procedure for challenging the inclusion of that information in the ECRC, but it was not until February 2014 that the police removed it. Mr C claimed for losses throughout this period.

Mr C’s claims included breach of duty of care in negligence and breach of contract.   The court held that to impose a duty of care on the former employer of a teacher when making safeguarding disclosures would discourage those who would provide assistance to the police on safeguarding issues in good faith.  The court also concluded that an express or implied term in a settlement agreement to the effect that any disclosure to safeguarding bodies would be in the spirit of an agreed reference would be void. Such a term would neglect a local authority’s duty to safeguard and promote the welfare of children. 

The court indicated that the term “third parties” referred to potential employers, but as the case concerned disclosures to statutory safeguarding bodies, such as the police, the issue was not further considered.  Had the employer disclosed information to another school and hence deviated from the agreed reference, it may well have amounted to a breach of contract.

Mr C has been given permission to appeal this decision.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E:
geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com   

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