The impact of Brexit on safer recruitment within the Education Sector
As we close in on 31 December 2020, marking the final day of the transition period following the UK's departure from the European Union (EU), changes will occur to the way in which the EU shares data with the UK. Whilst the impact on data sharing from the UK to the EU is minimal, EU to UK data flows are more complex.
As schools and academies will be familiar, Part 3 of the Keeping Children Safe in Education Guidance sets out statutory guidance to which schools and academies should have regard when implementing a recruitment process. In particular, the guidance sets out the position that schools should adopt when carrying out pre-recruitment checks, including criminal records checks, barred list checks and prohibition checks.
When recruiting individuals based within the European Economic Area (EEA) (being the EU, Iceland, Liechenstein and Norway), schools and colleges:
- must follow part 3 of the Keeping Children Safe in Education Guidance;
- must make any further checks that they consider are appropriate so that relevant events that occurred outside of the UK can be considered; and
- should check for teacher sanctions or restrictions imposed by the relevant EEA professional regulating authority.
The level of DBS certificate required, and whether a check for any prohibition, direction, sanction or restriction is required will depend on the role that is being offered and the duties involved. However, as the majority of staff will be engaging in "regulated activity", which includes teaching, an enhanced DBS certificate which includes barred list information will usually be required for most appointments.
At present, where a school or academy trust is seeking to employ a teacher who has been based in an EEA country, the Teaching Regulation Agency (TRA) holds a list of EEA teachers with sanctions to enable part (c) of the above checks to be carried out. The TRA is the competent authority in England for the teaching profession on behalf of the Secretary of State for Education. Such checks for these sanctions on EEA applicants can be carried out using the TRA Teacher Services' web page. The single central record should be updated to indicate (i) whether the check was carried out; and (ii) the date on which the check was completed.
Whilst any restrictions revealed by the check do not prevent a person from taking up teaching positions in England, schools and colleges should consider the circumstances that led to the restriction or sanction being imposed when considering a candidates suitability for employment. As such, the results have the potential to significantly impact the recruitment process.
What impact does Brexit have on these checks?
From 1 January 2021, the TRA will no longer maintain a list of EEA teachers with sanctions. This is because the professional regulators in the EEA will no longer share information about sanctions imposed on EEA teachers with the TRA via the Internal Market Information system.
As such, a school or college's ability to carry out the search on the Teacher Services' web page will cease. Instead, teachers will be asked to provide a letter of professional standing. Schools may also wish to ask applicants to provide proof of their past conduct as issued by the professional regulating authority in the country in which the applicant has worked.
What should employers within the education sector do?
Schools and colleges should continue to carry out safer recruitment checks on all applicants in accordance with the Keeping Children Safe in Education guidance. The suggestion of a letter of professional standing is not currently included in the Keeping Children Safe in Education guidance and therefore does not constitute statutory guidance. However, schools are required to take proportionate decisions on whether to ask for checks beyond what is required.
As such, it certainly worth exploring these options to acquire information on a teacher's past conduct. Where available, such evidence can be considered alongside other information obtained through other pre-appointment checks to help assess their suitability.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.