Pre-employment Management (Section 128) Checks: your legal obligations as an employer

We highlighted the importance that Ofsted is putting on compliance with rules on safeguarding checks in our last Bulletin. This article covers one aspect that is easily overlooked. School employers are aware that there are certain checks to undertake before employing a teacher. However, there are additional checks required for management staff of a school. This also applies to governors.

Under s.128 of the Education and Skills Act 2008, when appointing a manager in an independent school (which includes academies and free schools) it is necessary to check whether the applicant is not prohibited to participate in management of an independent school

This section allows the Secretary of State to direct that a person may not take part in the management of an independent educational institution, may take part only in certain circumstances or if conditions specified in the direction are satisfied.

When appointing a teacher to a managerial position, this check cannot be overlooked. Otherwise you will not be compliant with your safeguarding obligations. This applies to internal promotions as well as to external appointments.

Checking is simple and can be done through the Secure Access Portal. Paragraph 130 of the Keeping Children Safe in Education document outlines how schools can access this service.

Some Enhanced DBS Checks include checking whether an individual has been prohibited from managing a school. Verify with your DBS provider that this is included. We would recommend that you as an institution should check and not rely on third parties to provide such information. The check should be recorded on your Central Register.

Ofsted and the Independent Schools Inspectorate will inspect this Register when ensuring a school has met their safeguarding obligations. This could mean that either inspectorate may make negative recommendations in the report that will be forwarded to Parents, rate the school at a lower grade; or,in the worst case, could put a school in performance measures.

We recommend that schools periodically check their management staff and teaching staff to ensure that they have not been subject to a prohibition. When hiring internally as well as externally the institution should ensure they have complied with these pre-check obligations. We would stress that even if a staff member has been a teacher and is then promoted to a management role, this check should be undertaken.

It should be made clear in the contract of employment that it is a condition of employment that any Employee is not subject to any prohibition order under s.128 of the Education Skills Act 2008 or s.42 of the Education Act 2002 and a contract term inserted that if an Employee becomes subject to a prohibition order the employment can be terminated without notice. Failure to have such a term in the contract could mean that the Secretary of State may prohibit the individual from teaching and this then leaves the school in the position where they have no choice but to terminate and potentially have to defend a claim in the Employment Tribunal.

Legal 500 logo

Investors in People logo

UK Chambers logo

Best Companies - One to watch logo