Safeguarding Disclosures and Duty of Care
We are often asked to advise on the competing duties that can arise when a teacher is dismissed – to the teacher themselves, to any prospective employer requesting a reference, but also to the DBS and/or NCTL when there is a question about whether to make a referral about an individual teacher. The recent case of Melik Camurat v Thurrock Borough Council  EHWC 2482 provided useful guidance on these competing duties.
The Education Act 2002 imposes express duties to safeguard and promote the needs of children and other legislation expressly requires co-operation with the police in safeguarding situations. In addition, there are detailed guidelines as to when a referral should be made to the safeguarding authorities, particularly where there is a risk of harm to a child.
Employers have become familiar with the need to be cautious about the references they give, tending to limit them to factual detail to protect against challenge from prospective employers and also employees. It can be difficult to know how to handle a reference for a teacher when there have been safeguarding concerns.
Mr Camurat had been the subject of a number of disciplinary allegations relating to his use of force with students. Ultimately, he negotiated a compromise agreement with the local authority which included an agreed reference. The reference was broadly positive, but referred to the fact that Mr Camurat had been issued with a final written warning.
After the termination of his employment, the local authority disclosed a chronology of the disciplinary proceedings to the police, on request from its safeguarding team. The police effectively reproduced the chronology in an Enhanced Criminal Record Check and Mr Camurat subsequently lost a new job. He brought claims for negligence, breach of contract, misrepresentation and malicious falsehood against the local authority. He claimed that the local authority should not have disclosed anything that differed from the spirit of the agreed reference in his compromise agreement.
However, the court held that an employer does not owe an employee a duty of care when making safeguarding disclosures – precedence will be given to the duty to make a disclosure to the safeguarding authority. The judge felt that imposing a duty of care to employees "would discourage those who would provide assistance to the police on safeguarding issues.”
Whilst employers still need to be careful about the information they disclose, particularly to ensure they do not breach any contractual agreement to provide a reference, it is helpful to have confirmation that the duty to disclose safeguarding concerns will be paramount and may override other duties to an employee. The Melik case also provides a helpful reminder that safeguarding disclosures may be appropriate even if a teacher has not been dismissed, but where their employment is terminated by mutual agreement.
For more information please contact Bethan Jones, a Solicitor in Michelmores' Education Team at firstname.lastname@example.org