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Employment law, child protection and safeguarding – where is the link?



The stories of abuse committed by individuals like Jimmy Savile; Nigel Leat ; and Barry Bennell highlight the need for organisations to safeguard themselves and to protect children from harm. Although media attention has focused on schools and, more recently, football clubs, no organisation or sector is immune and all organisations that work or come into contact with children should be alert to the risks and proactive about reducing them.

Despite the fact that the child protection regulations in the UK are amongst the most extensive in the world, the system is clearly in need of further improvement and more work remains to be done, not only to deal with current risks to the welfare and protection of children, but also new risks in the future which will unfortunately doubtless arise.

This blog post looks at the ways in which safeguarding and child protection overlaps with employment law and the steps that HR professionals can take to ensure that their organisation protects children from harm.

Why are we talking about safeguarding and child protection?

As many of you know, in addition to employment and education law, our team also specializes in child protection and safeguarding law. In May 2015 we decided to bring together the safeguarding and child protection expertise that existed across the firm and launch the Child Protection Unit (CPU) to help organisations to keep children safe.

The CPU advises all organisations that come into contact with children. For us, that includes schools (including international schools) and academies, nurseries and day care, faith-based organisations, higher education institutions, charities, museums and visitor attractions, sports clubs and national governing bodies, summer schools, and indeed any organisation that provides work experience to, or is involved in mentoring or charitable activities with, school age children. The CPU also advises organisations that work with adults with care and support needs. This blog post focuses on our work with children.

We provide advice on a range of issues, from information sharing to online safety; from local authority referrals to regulatory inspections; from creating safer organisations to handling allegations of abuse. We train, advise and steer organisations towards outcomes that ensure to the greatest extent possible the safety and welfare of children.

What is the link between employment law, human resources and safeguarding and child protection?

The role of HR professionals is to recruit, manage and engage with the adults working in their organization. If the organization comes into contact with children, then ensuring that these adults are suitable to work with children becomes a fundamental part of that role, and is critical to keeping children safe. Employment law and safeguarding guidance regulate how this should be done.

What can HR professionals do to ensure the suitability of their staff and volunteers and the safety of children?

Ensuring the suitability of your staff and volunteers requires input at many levels of the HR process, including:

(a) Recruitment and vetting

Safer recruitment is the organization's first opportunity to prevent abuse. If carried out effectively, safer recruitment practices can enable organizations to detect and reject unsuitable candidates. They can also deter individuals looking to target organizations with relaxed recruitment procedures.

What do effective safer recruitment practices look like? Prominent safeguarding statements on all recruitment documentation; comprehensive safer recruitment training for those involved in the selection of candidates; criminal records checks; robust reference pro formas and application forms that include safeguarding questions; rigorous checking of employment history, references and qualifications; and effective interview technique (that go beyond the standard safeguarding questions) are all important.

What does it mean for an individual to be suitable to work with children? As a minimum, you should look for an individual who (a) does not pose a risk of harm to children; (b) has positive and healthy attitudes towards children and acts in the best interests of the child; (c) contributes to the provision of a safe and non-judgmental environment; (d) is able to build healthy, appropriate and trusting relationships with children; (e) has safeguarding values that are aligned to those of your organization; (f) is able to identify a child that may be at risk of harm or an adult that may pose a risk of harm to a child; and (g) knows what to do if they have a safeguarding concern. Identifying these individuals can be difficult and requires training and experience. Initiatives such as value-based interviewing, pioneered by NSPCC can be helpful.

(b) Induction and on-going training

A thorough induction for all new staff and volunteers is essential to ensure that they are clear about expected codes of conduct, appropriate boundaries and the action that will be taken as a result of any breaches. It contributes to the organisation's overall safeguarding culture and can act as a barrier to individuals who may have otherwise been tempted to abuse.

Training that clearly explains what is expected of staff and volunteers is essential, not only to ensure that the safeguarding policies and rules are followed, but also to enable organizations to take robust action in response to any breaches. As set out in a recent serious case review:

"studies of perpetrators of sexual offending in organisations have found a reduced likelihood of abuse taking place where organisational messages and rules are clear and consistent and the organisational culture is directly focused on the needs of the children (Erooga et al 2012) [which includes] an explicit safeguarding culture and ethos with values and behaviours which are both articulated and lived at each level of the organisation, and clear policies and procedures which make it explicit to staff what is expected of them and facilitate the raising of concerns" (Local Children Safeguarding Board, Hammersmith & Fulham, Kensington and Chelsea and Westminster, Serious Case Review, found here)

Training does not always need to be formal; regular meetings to discuss concerns about children and to learn from each other can be just as valuable.

The drafting and communication of the staff code of conduct and key safeguarding policies are an important part of training. Involving staff and volunteers in the drafting of these policies is a good way to ensure buy-in and ownership from them. The non-statutory guidance What to do if you're worried a child is being abused (March 2015) and Guidance for Safer Working Practice for those working with children and young people in education settings (October 2015) both contain helpful advice for professionals working with children and can usefully be referred to and included in organizations' training.

(c) Appraisals and performance reviews

For all organisations working with children, safeguarding should be incorporated into staff members' appraisals and feedback provided to volunteers, to ensure improvement in their practice over time. Rather than labelling it "safeguarding", it may resonate more with employees if it is referred to in less technical terms, such as an individual's "ability to identify and handle concerns about children".

(d) Staff supervision and support

Staff should be supported in their roles so that they feel confident to carry out their duties effectively. Focusing on staff welfare and ensuring that staff vulnerabilities are identified and addressed will also help them to protect children. Studies of perpetrators of child sexual abuse in organisations indicates that strong staff support networks and positive cultures may also prevent individuals from abusing (Erooga).

(e) The management of breaches of safeguarding policies

Ensuring that when concerns are raised about staff or volunteers, these are acted on in an appropriate, proportionate and sensitive manner. For concerns that do not meet the threshold of an allegation, and hence should not be referred externally, action might include investigating the matter and clearly explaining to the adult who is the subject of the concern:

(a) why their behaviour is inappropriate;
(b) exactly what they should do going forwards to ensure that they correct their behaviour;
(c) the consequences if they don't (e.g. disciplinary action/referrals to the designated officer of the local authority); and
(d) closely monitoring the situation to ensure that the member of staff is in fact correcting their behaviour.

For some concerns (for example, where the staff member has breached the staff code of conduct or school policies), following the school's disciplinary procedure may be appropriate.

(f) The handling of allegations of abuse

Working Together to Safeguard Children (March 2015) WTSC Chapter 2 Paragraph 4 makes it clear that where a concern about an adult working in an organisation meets the local authority's threshold for a referral to their designated officer, a referral should be made immediately by a senior manager within the organization within one working day. WTSC states that an allegation includes all concerns that a person who works with children may have:

• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child; or
• behaved towards a child or children in a way that indicates that he or she would pose a risk of harm to children.

When handling allegations of abuse, organisations should always follow their internal policy and work alongside external agencies such as the designated officer of the local authority or the police. Child protection allegations can escalate suddenly. There are often a number of very fine judgment calls which need to be made under pressure almost immediately and which will determine the course of events. Factors that may require consideration include employment law; data protection; statutory safeguarding guidance; local authority procedures; criminal law; and internal policies. Often these factors conflict with each other. This is where good advice at the outset can be very valuable.

Our advice would be to try wherever possible to take the time to explore all of your options at the very beginning. Think not only about the decisions that you need to take but also about the way in which you should communicate those decisions and keep in mind your obligations to refer externally. If it seems impossible to know which course of action to take ask yourself which decision would best ensure the safety and welfare of the child and the other children in the organisation.

Organisational culture

All of the steps set out above contribute towards the establishment of a strong organisational culture that protects children. Culture is very difficult to change and maintain and it is only in adopting a holistic approach that organisations will be able to create this change and to protect children from harm.

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Farrer & Co, Insights

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