5.5 Managing Allegations Against Staff and Volunteers

1. Definitions

Throughout this guidance the following definitions are used:

Allegation: An allegation may be communicated through various means. It may not always be clear or explicit. For more information, see Section 3, Allegations Dealt with by these Procedures.

Child/children: Anyone under the age of 18.

Designated Safeguarding Lead (DSL): All organisations should have either a designated, responsible or named person to whom these allegations are reported. This person will have the responsibility to report allegations to, and liaise with, the LADO. For this guidance, these roles will be referred to as designated safeguarding lead (DSL).

Employer: any organisation with responsibility for paid or unpaid staff, agency workers, contractors and volunteers.

Local Authority Designated Officer (LADO): The local authority designated officer is a statutory role set out in Working together to Safeguard Children

Organisation: The body the member of staff is working for. This could be a statutory body such as health, education, police or social care, or within the private, charitable or independent sector.

Position of trust: While ‘Position of trust’ is a legal term that refers to certain roles and settings where an adult has regular and direct contact with children, within this guidance it also includes those providing care or support or education to a child.

Person of concern: The adult an allegation has been made about.

Staff: Anyone who is in a position of trust for a child under the age of 18 or has management and/or oversight of those that do. This can be in a paid or voluntary capacity and does include foster carers and prospective adopters. The term also applies to any person who manages or facilitates access to an establishment where children are present. This can include someone under 18 who has been put in a position of trust by an organisation i.e. coaching a sport or out of school activities.

2. Introduction

All organisations working with children and families should have clear and accessible policies available to staff. These policies should be consistent with these procedures, and provide a clear distinction between an allegation, a concern, or a complaint.

The policy should contain an explanation of what should happen when concerns or allegations about the behaviour of a member of staff are raised, how they are reported to the Buckinghamshire Local Authority Designated Officer (LADO) team and set out the process of investigation.

All organisations should have a designated safeguarding lead or equivalent to whom these allegations are reported. Each organisation will have the responsibility to report allegations to, and liaise with, the LADO.

3. Allegations Dealt with by these Procedures

Working Together to Safeguard Children defines an allegation as when a person who works with children who has:

• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child;
• behaved towards a child or children in a way that indicates they may pose a risk of harm to children;
• behaved or may have behaved in a way that indicates they may not be suitable to work with children.

These behaviours can occur in the workplace (Direct Risk); at home or in the community (Transferable Risk).

Whilst not specifically covered by statutory guidance, these procedures should also be applied when any member of staff is closely associated with someone in their personal lives (e.g. partner, member of the family or other household member) who may present a risk of harm to child/ren for whom the member of staff is responsible. This is referred to as ‘Risk by Association’.

Individuals who have been convicted of a ‘relevant offence’ or are subject of a ‘relevant order’ (see Disqualification under the Childcare Act 2006 – statutory guidance Appendices) can be disqualified from working with children in childcare, private fostering and children’s residential care[₁]. While other sectors are not covered by the disqualification requirements, similar consideration should be taken where there has been a ‘relevant offence’ or order made.

Allegations of non-recent abuse should be responded to and reported in the same way as current allegations. In cases of non-recent abuse, the person against whom the allegation is made may still be working with children and young people and it will be important to investigate whether this is the case.

[1]“Disqualification under the Childcare act 2006”, “Disqualification from Caring for Children regulations 2002” and “Section 65 of the Children Act 1989”

4. Roles

4.1 Role of the employer

The employer is responsible for carrying out an internal investigation into all allegations of direct risk. This may be delayed while criminal investigation is being carried out.

For allegations of transferable risk and risk by association (see Section 3, Allegations Dealt with by these Procedures), the employer will need to consider if and how any risk can be managed and share risk assessments with the LADO.

To ensure that risk mitigation is considered which may include suspension.

For all cases where there is a dismissal or cessation of use, and the ‘harm test’ for the DBS is met, the employer is legally responsible for completing a Disclosure and Barring Service DBS barring referral.

If there is regulatory or governing body oversight to the role carried out by the person of concern, the employer is responsible for making those with oversight aware of the allegation.

The employer offers support to any child involved with direct risk allegations.

Throughout the investigation period, there is a requirement for the employer to offer support to the person of concern.

The employer is responsible for maintaining their own records of the allegation, investigation, outcome and any action taken. This should be stored in line with the provision of the Data Protection Act 2018, Freedom of Information Act 2002 and Human Rights Act 1998 and UK GDPR.

4.2 Role of the police

The police assess all cases reported to them and investigate any that are potentially criminal.

Police will provide updates about the progress of their investigation to the LADO.

With any arrest where a significant risk is identified, the police have the power to disclose this to an employer, and to the LADO under common law police disclosure.

4.3 Role of children’s social care

Where the allegation indicates that a child has been harmed, or is likely to suffer harm, a referral to children’s social care should be made.

Children’s social care, will review the matter and determine the appropriate course of action. For information on how to make a referral, please see the Buckinghamshire Safeguarding Children Partnership website.

4.4 Role of the regulatory or governing body

Following their own processes, regulatory or governing bodies can restrict the practice of members either temporarily or permanently. Where their powers allow they can also carry out investigations and consider on-going suitability.

The LADO will liaise with individual organisations with oversight to discuss the context and actions in each case.

4.5 Role of the LADO

Working Together to Safeguard Children summarises the LADO role as “to be involved in the management and oversight of allegations against people who work or volunteer with children.”

This will incorporate providing advice, quality assuring the process and management of risk, sharing of information and liaising effectively with the police and other organisations to monitor the progress of cases ensuring  they are dealt with as quickly as possible, with a consistent  and fair process.

Cross border cases

The LADO who oversees the management of an allegation will be the LADO covering the local authority area where the employment is based.

Where the person of concern works across local authority borders, the LADO where the direct risk incident occurred will take the lead. In cases of transferable risk, the LADO where the main employment exists will take the lead.

If the allegation involves a Buckinghamshire foster carer living in another local authority area, the Buckinghamshire LADO will liaise with that LADO team to determine who holds oversight.

Information sharing and the LADO role

If an allegation arises about a member of staff or volunteer in their private lives, the LADO will need to consider whether there is a need to make disclosures to employers, voluntary bodies and/or professional bodies.

In relation to disclosing information, case law establishes that in the absence of a clear power or duty to inform, the test is whether there is a “pressing need” to disclose confidential information, sufficient to override the usual right and duty of confidentiality.

If the ‘pressing need’ test is not met, the LADO will not contact the employer and the case will be closed. Advice may be given to other agencies/individuals in order to address the concerns and manage any risk.

5. Responding to Allegations

5.1 Responding to an allegation or concern

If there is an imminent risk of significant harm, the police must be contacted directly and without delay

Initial actions

The person to whom an allegation or concern is first reported should follow their organisations policy, treat the matter seriously and keep an open mind. They should not interview the person of concern, investigate, ask leading questions to the reporting person, make assumptions or offer alternative explanations, or promise confidentiality.

They should make a record of everything related to the allegation, including dates, times and places and those involved and any witnesses. They should report the allegations immediately to the Designated Safeguarding Lead (DSL). The DSL or other relevant person should then report the allegation to the LADO, via an online referral form, as soon as is possible and within one working day. Referrals to the LADO should not be delayed while additional information is gathered. Consider also making a referral to Children Social Care MASH as per your agencies policy and procedure.

The employer will follow their internal processes to investigate matters assessed as low-level concern. It is important to document the incident and outcome, given accumulation could meet the allegation threshold.

If it is difficult to determine the level of risk or harm associated with an incident, the DSL should seek a consultation with the LADO either via email: [email protected], by calling 01296 382070 or using the e-Consultation form for the LADO to review the information.

The LADO and the DSL should consider first whether further details are needed.

The LADO will consider the information in relation to the criteria to determine threshold as soon as possible and within one working day.

If there is immediate evidence or information that establishes that the allegation is false or malicious then the allegation will be recorded and confirmed as closed. A discussion will be had about any action that may be needed in respect of malicious allegations.

Allegations of potential criminal behaviour

If the matter has not already been reported to the police, the LADO will seek a consultation with the police where there is a potential that the behaviour is criminal.

Any criminal investigation will take priority over other investigations.

Allegations of significant harm or risk

Where there is reasonable cause to suspect that a child has suffered, is suffering, or is likely to suffer significant harm, then a referral will be made to children’s social care so that a strategy discussion under section 47 Children Act 1989 can be considered by MASH (see Strategy Discussions chapter) or case holding team if the child is already open to social care.

When required, a discussion will occur between the MASH and LADO to agree if an allegations against staff and volunteers meeting (ASV) or strategy discussion is more suitable in each case.

5.2 Initial management of risk

Any allegation will include an element of on-going risk to children. The employer will need to consider what this risk is and how it can be managed in the short term.

One of the options for management of risk is suspension. While other professionals may wish to express a view, the decision to suspend or to change duties rests ultimately with the employer and should be in accordance with each organisation’s own policies, however should only be used where no other sanction is appropriate.

5.3 Making the person of concern aware

Where a notification to LADO is made the employer should inform the person of concern after consulting with the LADO. There will be occasions where the person of concern is already aware of the allegation or needs to be immediately removed from site. In this situation, the minimum amount of detail should be shared prior to discussing with the LADO.

Where an allegations against staff and volunteers meeting (ASV) is needed, or police may need to be involved, the subject of the allegation should not be informed until the police have been consulted and have agreed what information can be disclosed to the person and when.

If there is no external agency investigation or an ASV is not going to be held, the person of concern should be informed as soon as possible by their employer.

If the person of concern is a member of a union or professional association they should be advised to seek support from that organisation.

5.4 Making parents and carers aware

If the parents / carers of the child/ren concerned are not already aware of the allegation, the LADO will also discuss with the referrer how and by whom the parents / carers should be made aware. In circumstances in which the police or children’s social care may need to be involved, the LADO should consult those colleagues about how best to inform parents.

There will be some circumstances where the employer will need to advise parents / carers of an incident involving their child straight away, for example if the child has been injured while in the organisation’s care and requires medical treatment.

5.5 Next steps

There are four potential next steps in the consideration of an allegation:

• a police investigation of a possible criminal offence;
• local authority children’s social care enquiries and/or assessment about whether a child or young person is in need of protection or support services;
• consideration by an employer, or employers of disciplinary action in relation to possible performance/ conduct issues;
• action or investigation by a governing or regulatory body.

If the allegation needs an investigation the LADO will either convene an allegations against staff and volunteers (ASV) meeting/discussion or confirm to the employer that an internal investigation can progress.

On occasions an ASV will have to take place immediately but the speed at which any meeting is convened should be commensurate to the risk.

The LADO can provide advice and support to the employer where necessary.

6. Allegations Against Staff or Volunteers (ASV) Meetings

Where there are multiple investigations or enquiries taking place, or multiple employers, or a level of complexity within the allegation, an ASV meeting will be called.

If the allegation has not been reported to police and/or social care, and there is only one employer involved it may be that an ASV is not required. In these situations, the LADO will communicate with the employer and the HR advisor to agree the investigation process.

An ASV meeting will determine the strategy for managing the allegation and will be chaired by the LADO. It will normally be attended by the police, social care and the employer. The employer is advised to bring a Human Resources advisor. In situations where the allegation is against a health professional, the designated or named nurse for safeguarding (Integrated Care Board ICB) should be invited; or appropriate safeguarding lead from a provider trust/organisation. All those invited to the allegation management discussion will receive minutes, which will carry a reference to confidentially. This meeting will not involve the person of concern or their representative.

Where there is a larger number of people involved in the case, consideration will be given to convening a face-face meeting.

The initial meeting discussion should:

• share all relevant information;
• seek the police view on a criminal investigation;
• where appropriate, confirm with children’s social care if the section 47 threshold is met;
• ensure that children’s social care have put arrangements in place to protect the child/ren or young person involved and any other child/ren affected, including taking emergency action where needed;
• consider whether a complex abuse investigation is applicable (see Complex Abuse Procedure);
• consider the current allegation in the context of any previous allegations or concerns;
• where appropriate, take account of any procedure or policy being followed by the Person Of Concern (POC) i.e. use of reasonable force;
• agree protocols for sharing information, including informing the person of concern and the parents if this has not already been done;
• plan enquiries, allocate tasks and set timescales;
• consider what support should be provided to all children and young people who are involved or may be affected;
• consider what support should be provided to the member of staff and how they will be kept up to date with the progress of the investigation;
• consider if the investigations are sufficiently independent;
• make recommendations where appropriate regarding risk mitigation;
• consider if and when any parallel disciplinary process can take place;
• consider wider issues and the management of these e.g. media interest, resource implications;
• agree dates for future meetings if they are required.

Review meetings will also:

• consider if there is a need for a Disclosure and Barring Service (DBS) barring referral;
• consider what learning lessons can be taken from the process.

7. Suspension

Suspension should be considered only in cases where:

• there is cause to suspect a child is at risk of significant harm;
• the allegation warrants investigation by the police; or
• the allegation is so serious that it might be grounds for dismissal.

As it is only the employer who can suspend an individual, the case manager must consider carefully whether the circumstances warrant suspension until the allegation is resolved and may wish to seek advice from HR and the LADO.

The case manager should also consider whether the result that would be achieved by immediate suspension could be obtained by alternative arrangements. In many cases an investigation can be resolved quickly and without the need for suspension. If police bail conditions do not prevent the person of concern from working, the case manager should be as flexible as possible to avoid suspension. Based on assessment of risk, the following alternatives should be considered by the case manager before suspending a member of staff:

• redeployment so that the individual does not have direct contact with the child or children and young person concerned;
• providing an assistant to be present when the individual has contact with children;
• redeploying to alternative work so the individual does not have unsupervised access to children;
• temporarily redeploying the member of staff to another role in a different location.

These alternatives allow time for an informed decision regarding the suspension. This will, however, depend upon the nature of the allegation. The case manager should consider the potential permanent professional reputational damage to employees that can result from suspension where an allegation is later found to be unsubstantiated or maliciously intended.

Where it has been deemed appropriate to suspend the person, written confirmation should be dispatched within one working day, giving as much detail as appropriate for the reasons for the suspension. It is not acceptable for an employer to leave a person who has been suspended without any support. The person should be informed at the point of their suspension who their named contact is within the organisation and provided with their contact details.

If a suspended person is to return to work, the employer should consider what help and support might be appropriate (e.g. a phased return to work and/or provision of a mentor), and also how best to manage the member of staff’s contact with the child or young person concerned, if still in the workplace.

7.1 Police bail

If the requirement to arrest is not met, the suspect will often be interviewed under caution on a voluntary basis.

If arrested, police have several options if the decision is made to release the suspect from custody whilst the investigation continues. The default option is to “release under investigation” (RUI) where there are no linked conditions or specific timescales imposed on them.

The other option is to release on police bail where specific conditions may be imposed. The decision to bail and impose conditions must be both necessary and proportionate and has strict timescales associated with it. These are initially set at 28 days, however, can be extended to 3 months by authority of a police superintendent and longer by application through the magistrate’s court.

The decision by police to arrest or interview a suspect on a voluntary basis and whether they are RUI or bailed should have no bearing on assessing the evidential merits of the case. Any decision to suspend an individual should be made after a full assessment of the evidence and information gathered.

7.2 Governing and regulatory bodies prohibition order

In cases where the person of concern is a member of a national governing or regulatory body, that body should be made aware.

7.3 Resignations and compromise agreements

If a person of concern tenders their resignation, or ceases to provide their services, it must not prevent an investigation from being completed and an outcome reached and shared with the LADO.

This conclusion will determine, for example, whether a referral must be made to the Disclosure and Barring Service (see Section 9, Outcomes Following an Investigation).

A Compromise Agreement must not be used to circumvent or frustrate the investigative process.

Wherever possible the subject of the allegation must be given an opportunity to answer the allegation and make representations. Any enquiries and investigations must continue to a conclusion even if the person refuses to co-operate; decisions will be taken on the strength of what is known in the event that an individual chooses not to make representations.

8. The Role of the LADO

8.1 Transferable risk – allegations against staff in their personal lives

If an allegation arises about a person of concern, outside of their role, and this may present a risk of harm to children they work with, the LADO will need to consider if there is “pressing need” to:

• approach the member of staff’s employer for further information, in order to assess the level of risk of harm; and/or
• invite the employer and their HR Advisor to a further meeting/discussion about dealing with the possible risk of harm; and/or
• provide the information directly to the employer for them to assess any risk and mitigate it

8.2 Risk by association – risk posed by others in the personal life of staff

There are occasions where there are allegations of serious abuse against someone closely associated with a member of staff (e.g. partner, member of the family or other household member) that poses a potential for risk of harm to child/ren for whom the member of staff works with.

In these circumstances, a meeting/discussion should be convened to consider:

• the ability and/or willingness of the member of staff to adequately protect the children;
• whether measures need to be put in place to ensure their protection;
• whether the role of the member of staff is compromised.

8.3 Timescales

It is in everyone’s interest to resolve cases as quickly as possible through a fair and thorough investigation. All allegations should be investigated as a priority to avoid any delay. The time taken to investigate and resolve individual cases depends on a variety of factors including the nature, seriousness and complexity of the allegation, but these targets should be achieved in all but truly exceptional cases.

For those cases where it is clear immediately that the allegation is false or malicious, they should be resolved within one week.

Outside of cases where there is a police investigation, the LADO target timeframes are that:

• 80 per cent of cases are resolved within one month;
• 90 per cent are resolved within three months;
• All but the most exceptional cases should be completed within 12 months.

The LADO reviews the progress of each case at least monthly for the first three months. This could be by way of review meetings / discussions or direct liaison with the police, local authority children’s social care, or employer, as appropriate. Where the target timescales cannot be met, the LADO will record a rationale.

The LADO should keep comprehensive records in order to ensure that each case is being dealt with expeditiously and that there are no undue delays. The records will also assist safeguarding partners to monitor and evaluate the effectiveness of the procedures for managing allegations and provide statistical information to the multiagency safeguarding partners as required.

If a police investigation is to be conducted, the police should set a date for reviewing its progress and consulting the Crown Prosecution Service (CPS) about continuing or closing the investigation or charging the individual. Wherever possible, this should be no later than four weeks after the meeting/discussion. Dates for further reviews should be so be agreed, either fortnightly or monthly depending on the complexity of the investigation.

8.4 Record keeping

The LADO team will hold case files on all allegations for 10 years or until retirement age, whichever is longer.

The file will detail the nature of the allegation, the LADO rationale for confirming threshold is met, the details of the investigation, the allegation outcome and what action has been taken.

In addition to the LADO record, a full summary of the case record should be kept by employers on an employee’s confidential personnel file, specifying details of the allegation, decisions reached and action taken.  The employee should be provided with a copy. This record should be retained according to guidance around employee records.

Where allegations are determined to be malicious, the person of concern should be given the option of having the detail removed from their employment / human resources records.

9. Outcomes Following an Investigation

Substantiated

There is sufficient evidence to prove the allegation that a child or young person has been harmed or there is a risk of harm.

If the facts of the incident are found to be true but it is not found that a child or young person has been harmed or there is a risk of harm, then consideration should be given to deciding that the outcome is ‘unfounded’.

False

There is sufficient evidence to disprove the allegation.

Malicious

There is sufficient evidence to disprove the allegation and to evidence there has been a deliberate act to deceive.

There should be consideration as to what action against the referrer may be appropriate in these circumstances.

False and malicious allegations may be an indicator of abuse elsewhere which requires further exploration. If an allegation is demonstrably false, the employer, in consultation with the LADO, should consider referring the matter to LA Children’s Social Care to determine whether the child is in need of services, or might have been abused by someone else.

Unsubstantiated

 There is insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.

Unfounded

The additional definition of ‘unfounded’ can be used to reflect cases where there is no evidence or proper basis which supports the allegation being made. It might also indicate that the person making the allegation misinterpreted the incident or was mistaken about what they saw. It may also indicate that the motivation behind the behaviour was to prevent harm rather than cause harm.

The outcome of the allegation is determined by the employer. If the LADO does not support the decision made, a challenge will be made to the employer with a rationale for the disagreement from the LADO. If the employer maintains their decision on the outcome, this will be recorded on the LADO records, alongside the LADO rationale for an alternative outcome.

References

Cases in which an allegation was proven to be false, unfounded, unsubstantiated or malicious should not be included in employer references. A history of repeated concerns or allegations which have all been found to be false, unsubstantiated or malicious should also not be included in any reference.

Substantiated allegations should be included in references, provided that the information is factual and does not include opinions.

Onwards referrals

 If the allegation is substantiated and the person of concern is dismissed, or is likely to have been dismissed if they had not resigned, or otherwise ceases to provide a service the employer has a legal requirement to consider a referral to the Disclosure and Barring Service (DBS) for a barring review.

See Guidance: Making Barring Referrals to the DBS (Disclosure and Barring Service) and Barring Referral Flowchart

If a referral has not already been made to the regulatory or national governing body by this point, a referral to that body will also need to be made.

10. Action Following a Criminal Investigation or Prosecution

The police should inform the employer and LADO straightaway when a criminal investigation and any subsequent trial are complete, or if it is decided to close an investigation without charge, or not to prosecute after the person has been charged.

In those circumstances the LADO should discuss with the employer what further action is required.

If the allegation was one of direct risk, the employer will need to carry out an investigation under HR processes.

If the allegation was of transferable risk, the employer will need to complete a risk assessment to determine if risk can be managed and how.

Where information from the police and / or children’s social care is available, it should inform the processes.

Action by the employer, including dismissal, is not ruled out in any of those circumstances. The range of options open will depend on the circumstances of the case and the consideration will need to take account of the result of the police investigation or trial, as well as the different standard of proof required in disciplinary and criminal proceedings.

11. Disciplinary or Suitability

The aim of an employment investigation is to obtain, as far as possible, a fair, balanced and accurate record in order to consider the appropriateness of disciplinary action and/or the risk of harm to children. Its purpose is not to prove or disprove the allegation.

The designated safeguarding lead should discuss with HR whether the conduct constitutes misconduct or gross misconduct, and any disciplinary action should be taken in line with the employer’s disciplinary procedure.

If a disciplinary hearing is required, it should be held within the timeframe laid out in the employer’s procedures.

If formal disciplinary action is not required, the employer should meet the employee to discuss fully the outcome of the allegation and ensure they are reintegrated into the work environment.

Agency staff

In the case of supply, contract and volunteer workers, normal disciplinary procedures may not apply. In these circumstances, the LADO and employer should act jointly with the providing agency to ensure that the agency is able to carry out an appropriate investigation.

Sharing information for disciplinary purposes

Wherever possible, police and local authority children’s social care should, during the course of their investigations and enquiries, obtain consent to provide the employer and/or regulatory body with statements and evidence for disciplinary purposes.

If the police or CPS decide not to charge, or decide to administer a caution, or the person is acquitted, the police should pass all relevant information to the employer without delay.

If the person is convicted, the police should inform the employer and the LADO straight away so that appropriate action can be taken.

Every effort should be made to reach a conclusion in all cases even if:

• the individual refuses to cooperate, having been given a full opportunity to answer the allegation and make representations;
• it may not be possible to apply any disciplinary sanctions if a person’s period of notice expires before the process is complete.

12. General Responsibilities

The accused member of staff should:

•  be treated fairly and honestly and helped to understand the concerns expressed and processes involved;
• be kept informed of the progress and outcome of any investigation and the implications for any disciplinary or related process;
• if suspended, be kept up to date about events in the workplace.

The employer may need to seek advice from their LADO, the police and/or local authority children’s social care about how much information should be disclosed to the accused person. However, providing information to the accused person throughout the process of dealing with the concern or allegation is an essential part of the common law duty to act fairly.

The person that is alleged to be responsible for abuse and/or neglect should be provided with sufficient information to enable them to understand what it is that they are alleged to have done or threatened to do that is wrong and to allow their view to be heard and considered. This also needs to be seen in the wider context of prevention, for example, information can be used to support people to change or modify their behaviour. Feedback should be provided in a way that will not exacerbate the situation or breach the Data Protection Act 2018 or UK General Data Protection Regulations.