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Change the law so teachers are allowed to share information

Comment 11th July 2010

 

I was a teacher who was found guilty of misconduct at a disciplinary hearing for sharing information with other professionals.  I showed my risk assessment for Child T, an 11 year old pupil, to the instructors at an outdoor education centre.  My risk assessment said that Child T was likely to run off, was reckless, refused to follow instructions and had a Statement which gave him full time support in school for his violent behaviour.  Hackney Social Services complained because I hadn’t allowed them to change my risk assessment so that Child T would be allowed to stay in an unsupervised dormitory.  (Child T was a “looked after child” from Hackney)  The Department of Education said the disciplinary finding was reasonable because I hadn’t followed the correct guidance and the law. 

 

In summary Department officials said that what I should have done was either to have gone to the HSE to get permission to share information or entered into a formal dispute with Kent CC about it.  I had done everything else officials described; in fact it was KCC who had told me to write the risk assessment for Child T when I went to them with my great concern about taking him without his support at night.  In school, even with his support, he had managed to assault both staff and pupils.

 

The Department agreed that I would have been criminally liable in the event of an accident if I had changed my risk assessment but said I shouldn’t have worried because Kent CC would have been criminally liable too! 

 

THE DEPARTMENT WROTE:

 

“ [a] with regard to your statement "I gave information to Bowles, in line with government guidance”

 

 [iii] it appears to DfES that anyway your action was not in line with DfES guidance.  While HASPEV advises school staff to give information to a provider (e.g.: "The group leader should also provide any relevant information to the provider such as the group's age-range, competence etc." – para 169), it also advises that the group leader's risk assessment for the visit should be approved by the head teacher (para 37).  DfES understands that your action in passing information to the provider in this case was not approved by the head teacher.  Therefore it appears that your action went against DfES advice on obtaining head teacher approval

 

 [b] You mentioned that you gave information to Bowles "as a PID" (Public Interest Disclosure).  DfES has not issued guidance on PIDs, though as you know, our web pages now refer enquirers to DTI and HSE advice on the Public Interest Disclosure Act 1998.  DfES's view is that the employment tribunal system is adequate for dealing with PID matters between school staff and their employers;

 

[c] Your letter seems to imply that your only choices were either to send the information as you did, or to modify the risk assessment in line with Hackney's wishes.  DfES believes that a school employee generally has more options.  The employee could pass the provider's request for information to the head teacher.  If the head teacher then sent to the provider, or directed the employee to send to the provider, information which the employee believed would endanger safety, the employee could take that concern to the school's Governing Body; and then, if still not satisfied, to the school employer.  If still unsatisfied with any response from the school employer, the employee could follow the procedures outlined by DTI (as mentioned above), e.g. by informing the HSE if the PID related to "matters which may affect the health or safety of any individual at work; matters which may affect the health and safety of any member of the public arising out of, or in connection with, the activities of persons at work" (source: DTI guidance).  DFES'S VIEW IS THAT YOU COULD HAVE ACTED SIMILARLY IN THIS CASE, INSTEAD OF SENDING INFORMATION TO THE PROVIDER;


[e]  You also wrote that if you had modified the risk assessment in accordance with Hackney's wishes "I would have been criminally liable in the event of an accident".  It might be worth reminding ourselves here that, as we both know, the school employer retains the main responsibility under workplace safety law.  Therefore:

– IF A SCHOOL EMPLOYEE ACTS ON THE EMPLOYER'S INSTRUCTIONS, THEN THE EMPLOYER AT LEAST SHARES CRIMINAL LIABILITY WITH THE EMPLOYEE; and

– if the school employee has done what workplace safety law requires (i.e. has drawn to the employer's attention the employee's view that the employer should make further arrangements to deal safely with a workplace risk, and has otherwise cooperated with the employer's arrangements), then the employer, not the employee, will bear the main
criminal liability; and if the employee, exercising their common-law duty of care, still believes that a particular action approved by the employer would be negligent of a pupil's safety, then THE EMPLOYEE CAN AVOID ALL CRIMINAL LIABILITY BY REFUSING TO TAKE THAT ACTION AND ENTERING A FORMAL DISPUTE WITH THEIR EMPLOYER as at 2c above.

[6]  DfES does not wish to take a view on whether any criticism by Hackney Social Services was or was not reasonable.  As stated at para 2c above, we believe that an employee can take a concern, about information which the employee believes would endanger safety, through internal and external dispute channels as outlined;”

Why does this matter?

 

  1. The laws and regulations described by the Department of Education conflict with the guidance given by Lord Laming following Victoria Climbie’s murder.  Lord Laming said that the child’s welfare was paramount and that teachers must constantly communicate any concerns and share relevant information.  He also said: “organisational boundaries and concerns about sharing information must never be allowed to put in jeopardy the safety of a child or young person”
  2. The 2005 Education and Skills Committee Report recommended cutting the bureaucracy around school trips.  Specifically they wrote:  “We recommend that the DfES takes action to streamline the risk assessment system surrounding school trips ………..the Department as well as LEAs should take care to ensure that schools and activity centres are not becoming overloaded with risk assessment bureaucracy.”  The letter I received from the Department shows that officials have no idea what it is like being a deputy head, running a Year 6 class and trying to organise a residential trip to a hazardous environment safely.
  3. The laws and regulations described by the Department ignore the recommendations of the 2005 HSE Glenridding Beck Tragedy Report.  This report said that schools needed to have effective management arrangements in place to ensure that leaders taking young people into hazardous environments were properly supported and that leaders of these activities should always put the safety and best interests of the young people first.
  4. The current laws and regulations take no account of the lessons which have been learnt from Serious Case Reviews such as the one into the brutal assaults at Edlington.  This review gave one of the causes of the assaults as:“poor recording and sharing of information in the service”. 

 

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