Hotline advice expressed here, and in calls to us, is made in good faith to our members. Schools and colleges should always take formal HR or legal advice from their indemnified provider before acting.

Leaders’ surgery

Declaring convictions

Q: I’m an Assistant Headteacher and I recently applied for a post as Deputy Headteacher in a different school. The application form asked the question: Have you ever had any convictions? In 1992, I had a conviction for drink driving, which does not appear on my Disclosure and Barring Service (DBS) check. Do I have to declare this on the application form?

A: Since May 2013, standard and enhanced checks no longer disclose all convictions and cautions. A process of filtering is carried out to establish what does not get disclosed on a DBS check. Whether a conviction is eligible for filtering or not depends on the type of offence committed. For example, a safeguarding offence would not be eligible for filtering (and would therefore appear) whereas many motoring offences would be eligible (and would therefore not appear).

DBS filtering guidance, published in December 2013, says employers “can only ask an individual to provide details of convictions and cautions that they are legally entitled to know about”. Additionally, the guidance goes on to say that “if an employer takes into account a conviction or caution that would not have been disclosed they are acting unlawfully under the Rehabilitation of Offenders Act 1974”.

Employers must, therefore, ensure that the questions that they ask reflect the process of filtering that is being carried out. Suggested examples of the correct wording to use on an application form are:

Do you have any convictions, cautions, reprimands or final warnings that are not ‘protected’ as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?

Have you ever been convicted (or received a caution, warning or final reprimand) for an offence that would not be filtered from the Police National Computer when it is processed by the DBS?

If at any point in the future a conviction that has not been declared (due to being filtered out) comes to light and an employee is challenged about it by their employer, the employee may be able to refer to the answer being correct and in line with the DBS filtering rules.

For more information see the DBS filtering guide: https://tinyurl.com/oxs9tjj

Alcohol consumption

Q: I’m a Headteacher of an academy and I’ve received a letter that’s been sent to all schools from the LA Head of Safety. The letter follows a National College for Teaching & Leadership (NCTL) Professional Conduct panel judgment about a teacher’s alcohol consumption (https://tinyurl.com/yafum25b). The panel’s conclusions included the following: “If a teacher consumes alcohol whilst responsible for pupils in his/her care, the impaired judgment poses a risk to pupils’ safety and is therefore in breach of Teachers’ Standards.”

The LA’s letter also says that any consumption of alcohol is likely to be seen as inappropriate given that the member of staff is responsible to provide effective supervision in the event of a critical incident/emergency that, by definition, could occur at any point in time.

Our staff code of conduct states: “On school trips, residential activities and social situations where staff are designated as being on duty, they should not consume alcohol and in social situations, including those where staff are there as guests (e.g. leavers’ balls), staff should ensure that their conduct is professional at all times.” Do I need to amend this?

A: Under the Health and Safety at Work etc Act 1974, employers are responsible for health and safety. Employees also have a duty to look after their own and others’ health and safety.

Employers and school staff also have a common law duty to provide care for pupils in the same way that a prudent parent would.

Where the local authority is the employer, it may give direction relating to the health and safety of persons, including pupils, on the school’s premises or taking part in any school activities elsewhere.

Maintained schools must follow the instruction in this letter. Governing bodies should comply with health and safety requirements set out by their LAs.

For MATs and academies, it is ultimately the trust and governors who determine the health and safety directions, although many take advice on educational visits through a service level agreement (SLA) with an LA.

It’s difficult to envisage a situation on a visit where a member of staff may not be on duty and, equally, a critical incident could occur at any time when staff are with students. The academy should therefore carefully review its policies.

Health and safety guidance issued by the DfE is available at: https://tinyurl.com/mwtytak The Outdoor Education Advisers’ Panel (OEAP) also has useful documentation on organising educational visits: http://oeapng.info/

Contact the hotline

ASCL members concerned about leadership issues should call the Hotline on 0116 299 1122 or email hotline@ascl.org.uk

Did you know…?

ASCL offers a contract checking service, so if you are about to accept a new post and would like one of our solicitors to check and comment on your contract before you sign it, please contact the ASCL Hotline on 0116 299 1122 and the duty officer will arrange this.

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