Barring education staff

When employers are legally required to refer school or college staff to the Disclosure and Barring Service (DBS) and the circumstances in which the DBS will bar a person from working with children.

 

What is the Disclosure and Barring Service?

The Disclosure and Barring Service (DBS) has three main statutory duties:

  • to maintain a list of individuals barred from engaging in regulated activity with children and vulnerable adults;
  • to make decisions as to whether an individual should be included on one or both barred lists; and
  • to reach decisions as to whether to remove an individual from the barred list(s).

In what circumstances are the employers of school/college staff required to make referrals to the DBS?

There are two conditions which must be met to trigger a referral to the DBS. A referral must be made when the employer or some other ‘regulated activity’ provider using the worker’s services

  1. Dismisses or ceases to engage the worker, or would have done so had the worker not resigned, retired or been made redundant;

    because

  2. they think that the worker has:
    • engaged in ‘relevant conduct’;
    • satisfied the Harm Test; or
    • received a caution or conviction for a ‘relevant offence’.

What is ‘regulated activity’?

Regulated activity is a term used to describe specific activities which involve working with children and vulnerable adults.  It includes any form of work paid or voluntarily carried out for the purposes of a setting or establishment which involves contact with children or vulnerable adults on a frequent, intensive or overnight basis. Frequent means once a week or more and intensive means four days or more in a single month.

What is ‘relevant conduct’?

Relevant conduct is defined as:

  • conduct which endangered a child and/or vulnerable adult or was likely to endanger a child and/or vulnerable adult;
  • conduct which, if repeated against or in relation to a child and/or vulnerable adult, would endanger that child and/or vulnerable adult or would be likely to endanger him or her;
  • conduct involving sexual material relating to children;
  • conduct involving sexually explicit images depicting violence against human beings;
  • conduct of a sexual nature involving a child.

What is ‘risk of harm’?

A risk of harm is said to be present when it appears that a worker may:

  • harm a child and/or vulnerable adult;
  • cause a child and/or vulnerable adult to be harmed;
  • put a child and/or vulnerable adult at risk of harm;
  • attempt to harm a child and/or vulnerable adult;
  • incite another to harm a child and/or vulnerable adult.

What is a ‘relevant offence’?

A relevant offence is any criminal offence which will, or may, subject to representations, lead to a person being included in a DBS barred list.  A list of ‘relevant offences’ is contained in various regulations, including the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (as amended).  The DBS has also produced a factsheet which lists all relevant offences.  The factsheet may be found by visiting the DBS website at www.gov.uk/dbs. 

What type of offences will amount to relevant offences?

A list of relevant offences is contained in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (as amended) and in other regulations too.  The regulations contain offences including:

  • exposure;
  • voyeurism;
  • abuse of position of trust: arranging or inciting a child to engage in sexual activity;
  • meeting a child after sexual grooming;
  • causing a child to watch a sexual act;
  • engaging in sexual activity in the presence of a child;
  • causing or inciting a child to engage in sexual activity;
  • indecent photographs of children; take, permit or make, possess, distribute or publish an indecent photograph or pseudo photograph of a child;
  • abduction of female under 18 with intent to carnally know her;
  • act of gross indecency with or towards a child under the age of 16; and 
  • possession of indecent photographs of children.

Can a school, college or supply agency refer a worker they do not employ to the DBS?

Yes, they can.  The DBS will consider all information referred to it from any source in relation to conduct causing concern. 

Can a former employer refer a worker who has long since left its employ to the DBS?

Yes, it can if it believes the individual works in regulated activity at another setting.

How does the DBS decide whether or not to bar someone?

The process adopted by the DBS will depend on the nature of the conduct complained of.  Where a member of staff accepts a caution or receives a conviction for a ‘relevant offence’, barring may be either automatic or subject to representations.  Relevant offences are therefore either ‘automatic barring offences’ (i.e., those which do not enable a staff member to make representations before inclusion on the barred lists) or ‘automatic inclusion offences’ (i.e., those which entitle the staff member to make representations before the DBS makes its decision).

What procedures apply in the case of automatic barring offences?

Where a staff member is cautioned or convicted for an automatic barring offence (which is also known as an auto-bar offence), the DBS will automatically include them on the Children’s Barred List, or Adults Barred List, or both.  The staff member will be barred from regulated activity for as long as they remain on the list.  Appeals may be lodged against automatic inclusion in the barred lists and this process is explained below.  Employers should be discouraged from moving to dismissal before the outcome of an appeal. The staff member may be suspended instead pending the outcome of an appeal.

What procedures apply in the case of automatic inclusion offences?

Automatic inclusion offences enable a staff member to make representations to the DBS before a decision as to whether they should be included in a barred list is made.  The staff member will typically receive a ‘minded to bar’ notice from the DBS and will have eight weeks from the date of the notice to make representations.  There is some discretion to extend time if there are good reasons for doing so, but the aim of the DBS is to reach a decision as quickly as possible.  Employers should be discouraged from moving to dismissal before the DBS has made its decision.

What procedures apply where the conduct complained of is said to amount to relevant conduct or risk of harm?

Where the DBS is considering the exercise of its discretionary power to bar, the staff member concerned will typically receive a ‘minded to bar’ notice which will set out as clearly as possible the information received, the DBS’ initial views following consideration of that information and the date by which the member’s representations are expected.  As with automatic inclusion offences, the staff member will have eight weeks in which to respond.  Employers should be discouraged from moving to dismissal before the DBS has made its decision.

What will happen once the DBS receive a teacher’s representations?

Once representations are received, the DBS may seek additional information from the police or other sources before making a decision.  Any information used to make a decision should be copied to the staff member, so that they may make comments.  Once the member’s representations/comments are received, the DBS will consider the evidence again before reaching a final decision.  The staff member will then be sent written notification of the final decision. 

Is there a right of appeal?

Yes, there is a right of appeal and it entails an appeal to the Upper Tribunal. Appeals must be lodged within 90 days of the DBS’ final decision letter and may be lodged with the Tribunal only on the grounds that the DBS made a mistake on a point of law or on a finding of fact on which the decision to bar was based.  Whether it was appropriate for the staff member to be included in a barred list is not a question of fact or law.

Is there a right to ask for a review?

Yes, there is a right to ask the DBS to review its decision to bar where the staff member does not appeal or remains on the barred list following an appeal.  The following review periods may be applicable depending on the circumstances:-

Where barring occurred before age 18                   -           1 year after the barring decision

Where barring occurred between age 18 and 25  -           5 years after the decision

Where barring occurred at age 25 or above           -           10 years after the decision

The DBS also has a discretionary power now to review decisions of its own volition, in addition to the prescribed review periods set out above.

What is the difference between the role of the Teaching Regulation Agency and the DBS?

That is a question the Union has been seeking to clarify for some time. The system of automatic barring for relevant offences is unique to the DBS and is a power acquired under the Safeguarding Vulnerable Groups Act 2006.  However, both the Teaching Regulation Agency (TRA) and the DBS have jurisdiction to consider information amounting to relevant conduct and conduct giving rise to risk of harm.  The NEU believes this represents a duplication of work and is likely to subject teachers to a system of double-jeopardy, since there is nothing preventing regulated activity providers from referring concerns about a teacher to both the TRA and the DBS at the same time.  Although the TRA and DBS have given assurances that they will work together to reach a decision in cases where this happens, the NEU’s casework experience suggests that this does not happen as well as it should. It is not unusual for a teacher exonerated by the DBS to be considered for prohibition by the TRA subsequently, or vice versa. For teachers innocent of the allegations against them, this is an unnecessarily stressful and bureaucratic process.  However, unless the law changes, teachers may continue to be subject to both jurisdictions in respect of the same alleged misconduct.

What should I do next?

If further advice is needed, contact your NEU workplace rep in the first instance.  If there is no NEU rep in your workplace, or the peripatetic nature of your employment makes contact with a workplace rep difficult, contact the NEU AdviceLine, or the Wales office where appropriate.  

Where can I find additional information?

Additional information about the barring scheme is available from the Disclosure and Barring Service website.

Further information

DBS checks

Disclosure and Barring Service (DBS) checks are designed to help employers determine your suitability for appointment.

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