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The Department for Education (DfE) has recently published guidance on childcare disqualification requirements to help schools understand the requirements placed on them by childcare legislation.
This guidance talks about the separate and additional burden that the Childcare Act 2006 (the Act) and the Childcare (Disqualification) Regulations 2009 (the Regulations) place on schools when recruiting staff.
In addition to being on the Children’s Barred List, the Act and the Regulations disqualify staff from registration for early years or later years provision if:
It is hoped that childcare disqualification ‘by association’ will guard against an individual working with young children who may be under the influence of a person who lives with them.
The childcare disqualification criteria apply to staff in schools who work in early years provision and in later years provision for children who have not attained the age of 8. They cover staff working in a nursery, primary or secondary schools.
Early years provision includes education and any supervised activity for a child from birth until 01 September following their fifth birthday. It applies to all provisions for children in that age range during and outside of school hours, including in school nursery and reception classes.
Later years provision covers childcare that is provided outside of school hours including breakfast clubs and after-school care.
The Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 also disqualify staff from being directly concerned in the management of such childcare.
The DfE has said that schools should be asking both new and existing staff to disclose the following information, not only about themselves but also about a person (people) who lives or works in the same household as them:
One practical way that you could do this is:
In terms of new staff, you should do this process as part of your pre-employment checks. This should be added to the checks you already do.
New staff: Candidates that are disqualified, or disqualified by association, will be deterred from an application or rejected.
Existing staff: If they disclose that they are disqualified or disqualified by association, they will have to be suspended pending advice from Ofsted, which may lead to a disciplinary process being commenced. Disqualification may be a fair reason to dismiss that member of staff, but you must also remember that you must follow a fair procedure to do so.
The DfE has said that schools are responsible for putting in place arrangements to obtain the necessary information to ensure the suitability of staff to work in the relevant settings in schools. It is an offence for an employer to knowingly continue to employ someone when they should be disqualified. Ofsted has the power to enforce the prohibition on employing a disqualified person and if necessary to initiate a prosecution against the school.
In relation to sanctions for employees, the DfE has said that this is down to the schools to deal with. They have said that it is not unreasonable to expect that members of the school workforce comply with a request of this nature. These childcare disqualification requirements are designed to protect the youngest and potentially most at risk pupils in schools.
It is for the head teacher and the governing body to determine what action they consider appropriate where any staff are unwilling to comply with the school’s request, including giving consideration to whether disciplinary action is appropriate where an employee has refused to comply with a reasonable request.
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