Dealing with school employees who are being investigated by the police

When the chalk-face meets the thin blue line: handling police involvement with school staff.

You find out that a member of school staff is under investigation by the police. Should the school get involved? How should you deal with any parallel internal disciplinary investigations? And when should the school report an employee to the police in misconduct cases? In this article we steer a course through this tricky area for school employers.

What to do first

There should be no knee-jerk reaction to suspend or dismiss the employee. A decision should first be made as to whether the criminal allegations have implications for the employment relationship.  This may require an initial investigation including speaking to the employee and/or seeking information from the police. It is very important to maintain confidentiality in these initial investigations (see data protection considerations below).

Suspension should only be imposed if there is a risk to the integrity of your investigation, a risk of harm to pupils, to the employee, to other staff or to the school as a whole. Suspension without good reason is likely to be found to be a detriment to the employee (for example in a discrimination claim). If taking no immediate action poses an unacceptable risk, the school should consider alternatives to suspension such as a change of role or place of work or having another member of staff present during contact with children.

There may be cases where it is not necessary to commence an internal investigation if the criminal allegations have no impact on the employee's role or on their work with colleagues or pupils. For example, an allegation of reckless driving might have no link to a teacher's ability to teach or their suitability for the role. On the other hand, some allegations may call into question the extent to which the teacher can be trusted to act in a safe way while responsible for children.

What about the school's safeguarding duties?

In many cases, there will be no increased risk to children because a member of staff is suspected of a crime. The facts of the case need to be considered and the school should apply the same criteria as would normally be the case in deciding whether to refer a concern to the LADO. If there is a risk of harm to a child, a referral should be made. The matter should be referred to the internal designated safeguarding lead where necessary. There should be no automatic referral to the LADO simply because of police involvement.

If the allegations concerned are safeguarding related, the school should also consider whether its duty to refer the matter to the DBS has been engaged. That is, if the member of staff works in a regulated activity and has been dismissed or has resigned because of safeguarding concerns. In the context of a school, a regulated activity includes regular teaching, training, instructing, caring for and supervising children as well as providing well-being advice to children and driving a vehicle for children. People are also working in a regulated activity if they regularly work in a school and have the opportunity for contact with children.

Should the school report an employee to the police?

There will be some cases where information comes to light about the misconduct of a member of staff which clearly indicates that a crime may have been committed. In such cases, the school should report the matter to the police. However, in many cases, the school will be unclear as to whether the allegations amount to a crime. Should a school report to the police in such cases?

The courts have considered this question and provide useful guidance. An employer who refers suspect or frivolous allegations to the police could by doing so breach the employment contract. Schools should be aware of the career consequences for a member of staff of being under the cloud of possible criminal proceedings. The Court of Appeal has stated that an employer should not refer allegations of misconduct by an employee to the police without "the most careful consideration" and only where there is a genuine and reasonable belief that the alleged conduct could be classed as criminal. Schools should take into account the strength of the allegations, the nature of the alleged offence and any concern for others in the workplace (for example children) when deciding whether to report the matter to the police.

How might criminal allegations impact on internal processes?

If the school decides that the allegations do impact on employment, an internal investigation should be carried out before making a decision about disciplinary action. Any investigation should follow the statutory ACAS Code on Disciplinary and Grievance Procedures which includes some assistance on dealing with criminal allegations.

It is good practice to make and maintain contact with the police in order to gain any relevant information and to ensure that the internal investigation does not interfere with the criminal investigation.

Where the allegations are potentially career ending, it is extremely important that the school ensures its investigation is thorough and its processes are fair and non-discriminatory. It is possible that the right to a fair trial (embodied in the European Convention on Human Rights) could be engaged in disciplinary proceedings in circumstances where the outcome of the process could lead to a NCTL decision to bar the teacher from teaching. Schools should therefore consider carefully any request that the employee's lawyer attend the disciplinary hearing in such cases.

Schools should bear in mind that the standard of proof in disciplinary proceedings is not as high as that for criminal trials. It is possible that an employee could be found not guilty in court where the evidence is not sufficient to prove beyond reasonable doubt that the employee has committed a crime. However, your internal investigation may provide evidence which indicates that it is more likely than not that the employee committed a breach and on that basis you may decide to proceed to a disciplinary sanction such as dismissal.

Because of the different criteria involved in the criminal and HR processes, it is important that employers do not simply rely on the decision of the police, the CPS or on the outcome of criminal proceedings in making a disciplinary decision. The employer must come to their own decision based on the evidence before them (although this will include any information provided by the police). ACAS advises that, where a disciplinary process cannot await the outcome of a police investigation, the school can complete the procedure based on its own investigation and hearing.

A member of staff may, often on the advice of their solicitor, refuse to respond to questions put to them in the disciplinary process on the basis that questions could prejudice an upcoming trial or police interview. In such a case, the employee should still be given the opportunity to put their case, perhaps by means of a prepared written statement.  On occasions, a parallel police investigation may hold back an internal investigation as evidence may be held by the police and not accessible to the employer. In such cases, it may not be possible to carry out the investigation and disciplinary hearing until criminal proceedings have taken their course. This can leave employers in a state of limbo for some time, often with the employee on long term paid suspension.

There may come a point at which the school will need to consider whether the disciplinary process can continue on the basis of evidence held by the school. Tribunals recognise that employers may be placed in a dilemma in such cases. A tribunal is more likely to find that a school has reasonably moved to dismissal before criminal proceedings are complete if there are compelling business reasons to do so. For example, if the financial and staffing constraints of the school are such that it is necessary to bring closure to the internal process.

The police may wish to interview those who provided witness evidence to the internal investigation. Although witnesses can refuse to give evidence to the police, a court may order that documents are disclosed or issue a summons for a witness to attend a trial.

Data protection considerations

People working at a school, particularly those who may be fielding calls and dealing with requests on reception, should be aware that personal data relating to employees, pupils and parents of pupils must be lawfully processed and that the provision to a third party of personal information could be in breach of data protection law.

In the case of criminal investigations, it is possible that the police will request personal information about the employee from the employer. The police should provide "section 28/section 29(3)" information request forms for this purpose. Information should not automatically be provided to the police. The request should be channelled to a senior decision-maker (for example the data protection officer or the CEO of the academy trust) who can make an informed decision about whether sharing the information would breach the rules. Information requested by the police may be covered by exemptions, for example where the disclosure is made in the interests of preventing or detecting crime and/or capturing or prosecuting an offender. If an exemption is considered to apply, the school may decide to disclose the data to the police.

Information about someone's criminal record is sensitive personal data and should only be shared with the employee's explicit consent unless an exemption applies. Where the school has a duty to report details of an employee's criminal record to the DBS or to a prospective employer, such disclosure will be exempt from the data protection rules because the disclosure is required by law.

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the Education team on 0113 244 6100. You can also keep up to date by following Wrigleys Solicitors on LinkedIn. The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.