UNISON advice on the Childcare Act: disqualification from working with children

Camden UNISON’s advice for workers in schools, in the wake of OFSTED insisting that regulations for childminders around potential disqualification from working with children if someone else in your household has committed criminal offences.

Could you be sacked for somebody else’s offences?

The 2009 Regulations under the Childcare Act 2006 included a list of situations in which you could be banned from working in childcare. This list included a list of offences committed by a person who lives in your household.

However, it was only in November 2014 that OFSTED insisted on implementing these measures in schools. This has caused panic across the Country. Nationally UNISON has had to deal with hundreds of cases, which have had a devastating impact on many people’s livelihoods. However most of the cases dealt with so far have resulted in no action taken against the individual concerned.

UNISON along with other trade unions, took legal action on this matter and as a result new guidelines have been issued by the DfE at the end of February. UNISON has made it clear that it expects the new government to repeal how the Regulations are applied as they were not intended for schools but for childminders or private and voluntary nurseries of a much smaller size.

Camden consulted UNISON and the NUT on guidelines that would help schools follow these government regulations. We have agreed the guidelines for schools to follow as the most sensible way of dealing with these regulations. We hope this should minimise members being caught by these regulations but it also gives staff clarity of what happens if they are.

 Childcare is strictly defined and only applies if:

• You work directly with children in a nursery or reception  class in a school or you work with them outside of school (e.g. breakfast club or after school club) and they are 8 years old or under, or you work in an Early Years Children’s Centre;
• Your job is to work with those children on a regular basis and does not include irregular cover for short periods of time;
• You manage staff who work with the relevant groups of children and does not include office staff or Site Services Officers who come into contact with these age groups of children.

You could be barred from working in childcare if:

• The person in your household is disqualified from working with children;
• The person has a conviction related to a violent or sexual offence or offences against children (in these cases a caution or a reprimand are considered convictions).

If you live in a shared household you are not expected to find out details of any convictions of the other people you live with.

Schools cannot employ anyone to work in childcare (as defined above) if they live with someone with such a record. However it does not automatically follow that you will therefore be sacked.

 Schools must gather information about anyone providing childcare to meet OFSTED requirements for Safeguarding. You could provide this information by discussing it with the relevant person in the school. If you need to make a disclosure you can contact UNISON for further advice. We have agreed a form that schools may use to collect information particularly for new staff.

Schools cannot hold any information about criminal convictions that identifies a person that they do not employ. It contravenes Data Protection legislation. If you have given them written information you should ask for it to be returned to you or destroyed.

It is possible that the school could redeploy you into another area of the school where you would not be providing childcare by transferring you to work in Years 1-6. This may be more difficult if you were a nursery nurse. However you can apply to OFSTED for a waiver. The Camden guidelines ask schools to consider supporting applications for waivers from their staff based on the knowledge they have of that member of staff and the lack of risk they pose to children.

The school could suspend you if they cannot redeploy you until a decision about a waiver is taken by OFSTED. This would be on full pay. If a waiver is not granted and you cannot be redeployed in the school you could be dismissed.

If you live with someone who has one of the convictions listed above then it is important that you get advice from UNISON as soon as possible. You could speak to the rep in your school or speak to Hugo Pierre on 020 7974 3996 or call the UNISON office 020 7974 1633.

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