However, to ensure you get the most out of your new employee and meet your legal obligations it is important to carefully manage the early stages of their employment.
Many schools still fail inspections because they have failed to undertake all the required recruitment checks and complete the Single Central Register properly.
The requirements of Keeping Children Safe in Education can be forgotten in the need to fill a vacancy urgently. It is essential to ensure that all the required checks are completed before an employee starts work. The only possible exception is where there is a delay in receiving the DBS check (see below).
2. Qualifications (where relevant)
3. Employment history
4. Two satisfactory references (one of which must be from the applicant's most recent employer)
5. Prohibition on teaching (including within the EEA if applicable);
6. Where the position amounts to "regulated activity" the receipt of an enhanced disclosure from the DBS
7. Where the position amounts to "regulated activity" confirmation that the applicant is not named on the Children's Barred List
8. Information about whether the applicant has ever been subject to a direction under section 142 of the Education Act 2002 which renders them unable or unsuitable to work at the School
9. For management positions, information about whether the applicant has ever been referred to the Department for Education, or is the subject of a direction under section 128 of the Education and Skills Act 2008
10. Confirmation that the applicant is not disqualified from working in connection with early or later years provision (if applicable)
11. Medical fitness for the role
12. Right to work in the UK
13. Overseas check (where necessary).
One of the most challenging aspects of ensuring that checks have been completed before an employee starts work is where they have spent time overseas and so an overseas check is necessary.
It is a matter for the school to consider whether this is needed depending on all of the circumstances. A school should take into account the guidance issued by the NSPCC which recommends that overseas information should be sought on those who have lived overseas for periods of three months or more, in the last five years.
Where applicants are asked to provide overseas information the best practice is to obtain a criminal records check from the relevant jurisdiction(s) or a certificate of good conduct. This can take considerable time and so hold up a recruitment process as an employee can only commence work once sufficient overseas information has been received. Where there is delay in receiving the overseas criminal records check, a pragmatic option may be to seek alternative overseas information to satisfy this check, such as an additional reference relating to time overseas.
If there is a delay in receiving a DBS disclosure a school has discretion to allow an individual to begin work pending receipt of the disclosure certificate. This will only be allowed if all other checks, including a clear check of the Children's Barred List (where the position amounts to regulated activity), have been completed. It will also be appropriate to undertake a risk assessment and ensure appropriate supervision arrangements have been put in place. These should be kept under review on a regular basis.
When offering a job to a successful candidate, schools are understandably keen to be welcoming and positive in tone. There is inevitably a tension between this and the legal conditions that an employment lawyer would recommend are included in any offer letter.
It is important to be aware that an offer and acceptance of a job can constitute a legally binding contract. This can be the case even with a verbal offer and acceptance. Ideally, the employment contract should be enclosed with the offer letter, to avoid any dispute over contractual terms. If this is not feasible, then the offer letter should make it clear that the offer is subject to full contractual terms, and all key terms should be highlighted.
Employers are legally required to provide prescribed "written particulars of employment" within eight weeks' of an employee starting work. However, it is preferable to provide the contract as soon as possible, as it is far more difficult to negotiate when time has passed and an individual has started work.
Any offer of employment should also clearly set out the "conditions" that the offer is subject to, for example medical fitness and references. This means that that if the school does not consider that the conditions are satisfied then the contract can be withdrawn, and the school will not be in a position where it has to give notice to terminate.
An effective induction process is important to ensure that your new member of staff understands the scope of the role and the expectations of the school.
During an induction process, schools should also ensure that staff are introduced to key policies such as Child Protection, Code of Conduct and Whistleblowing. They should also be told who is the Designated Safeguarding Lead at the school and have required training on child protection and Prevent.
We would strongly recommend that all employment contracts are subject to a probationary period. This provides a framework for both sides to focus on how the role is working out and identify any training or development needs. Should a new employee's performance not be meeting expectations then they can be advised of this at an early stage and the consequences, should there not be sufficient improvement. Although such situations are far from the desired outcome, schools can help themselves manage them through expressly stating that full disciplinary and capability procedures do not apply during the probationary period, and also providing for a shorter notice period to terminate the contract, to provide greater flexibility.
Probationary periods for teaching staff are often 12 months, so that an assessment can be made over the course of an academic year. For support staff it will usually be shorter and 3 to 6 months' is fairly standard, depending on the nature of the role. Schools can reserve the right to extend probationary periods but must make it clear to the individual if a probationary period has not been satisfactorily completed. The default position will otherwise be that a probationary period has been passed.
The way in which schools manage the introduction of new recruits can help set the tone for the rest of the relationship as well as ensuring that all legal obligations have been complied with. Investing in ensuring the recruitment and induction process are undertaken properly not only means legal compliance, but ensures that expectations are clear from the outset and sets out a framework to address issues should they arise.
Article adapted from The Independent Education Today.