Safeguarding Portal – Workforce Perspective
Recording and Sharing Information
(including malicious, unfounded or unsubstantiated allegations)
1. Introduction
How information is recorded and shared when it relates to a worker who is subject to a safeguarding concern is an area for careful consideration. Whilst the overriding duty to ensure the protection of children and vulnerable adults will always be of primary importance, care must also be exercised to ensure information is recorded in a controlled manner and only shared where appropriate. This is a particularly relevant where concerns have not been upheld and so there is sensitive balance between respecting the professional reputation of a worker and avoiding any potential for underlying concerns and patterns of behaviour to go unchallenged.
1.2 This guidance relates to safeguarding concerns relating to misconduct (disciplinary) or competency (managing unacceptable performance) of employees.
1.3 The Department for Education (DfE) has issued guidance on Keeping children safe in education. This is statutory guidance for Local Authorities, head teachers, school staff, governing bodies and proprietors of independent schools.
2. Misconduct
Following an investigation, the outcome, i.e. whether an allegation is considered to have been upheld, unfounded, unsubstantiated or malicious will impact on deciding how the information is recorded and who it is shared with.
2.1 Definitions - It is important to have a common understanding of what these terms mean:
2.1.1 Upheld (Proven): Where an allegation is upheld it means that there is identifiable evidence to prove the allegation on the balance of probability. The term therefore indicates misconduct or incompetence.
2.1.2 Unsubstantiated (Inconclusive): An unsubstantiated allegation means that there is insufficient identifiable evidence to prove or disprove the allegation on the balance of probabilities. The term, therefore, does not imply guilt or innocence.
2.1.3 Unfounded (Unproven): The term ‘unfounded’ means that there is no evidence or proper basis that supports the allegation being made, or there is evidence to prove that the allegation is untrue. There is the possibility that the allegation may be malicious (see below), but it might also indicate that the person making the allegation had misinterpreted the incident or was mistaken about what he/she saw, or was not aware of all the circumstances.
2.1.4 Malicious: The term ‘malicious’ implies that an allegation, either wholly or in part, has been made with a deliberate intent to deceive or cause harm to the person subject to the allegation. For an allegation to be classified as malicious, it will be necessary to have evidence to prove the intention to cause harm. Care should be taken in dealing with such allegations as some facts may not be wholly untrue. Some parts of an allegation may have been fabricated or exaggerated but elements may be based on truth.
2.2 Action following determination of a malicious or inconclusive allegation
Where it is determined that an allegation is malicious or inconclusive:
· the Safeguarding lead / LADO will refer the matter to Social Care to determine whether the child or vulnerable adult concerned is in need of services, or may have been abused by someone else.
· The manager will inform the worker of the allegation and the fact that no further action is to be taken.
· Consider whether informal professional advice to the member of staff who has been subject to the allegation is appropriate and, if so, in what form.
· Consider whether counselling and support is appropriate for those who raised the concern (workers or service users).
2.3 Action following determination of a malicious allegation
In the event that an allegation is shown to have been deliberately invented or malicious, the manager will consider whether it is appropriate to take any further action with the individual/s who raised the concern in order to prevent it from happening again in the future. The action taken will very much depend upon who raised the concern (i.e. service user, relative, member of staff) but may include an informal discussion or disciplinary action for a member of staff.
2.4 Recording
2.4.1 Recording of informal action
Where informal action was undertaken and the concern was deemed to be upheld or unfounded, a record of this discussion should be made on the
Informal discussion form and stored on the electronic personnel file.
2.4.2 Recording of formal action
Where formal action was undertaken and the allegation was deemed to be upheld or unfounded, a record of this decision will be stored on the electronic personnel file in the form of the formal outcome letter, a copy of which is received by the employee. A copy of the investigation report will be retained by the HR Operations for 25 years.
2.4.3 Recording of unsubstantiated/malicious information (informal and formal)
Where a preliminary enquiry / investigation was undertaken but the allegations were unsubstantiated and therefore the case did not progress
OR
Where a preliminary enquiry / investigation was undertaken and the allegations were deemed to be malicious
A record should be made on the electronic personnel file stating that:
· an allegation was made (but not what the allegation was),
· date the allegation was made
· the year the pupil was in (if applicable)
· the allegation was fully investigated
· the outcome was that it was found to be malicious or unsubstantiated and no further action was taken.
2.4.3.1This is primarily to safeguard the employee in the event that an allegation resurfaces in the future and the assumption is made that, as there is no record, it was not investigated at the time and therefore may lead to a further investigation. A copy of the investigation report will NOT be retained by HR Operations.
3. Capability (Performance)
3.1 Recording of informal action
Where informal action was undertaken, a record of this discussion should be made on the informal discussion form and stored on the electronic personnel file.
3.2 Recording of formal action
Where formal action was undertaken, a record of the outcome from this process will be stored on the electronic personnel file in the form of the formal outcome letter, a copy of which is received by the employee. A copy of the report will be retained by HR Operations for 25 years.
4. Sharing information
Sharing information relating to actions taken in response to a safeguarding concern is crucial to ensure the protection of children and vulnerable adults. However each time a request for information is received, it is the duty of those responding to carefully consider whether it is appropriate to do so and if so, what information should be shared.
4.1 However, child or adult protection overrides rigid compliance to data protection particularly between Hampshire County Council departments given that we are ‘one employer’
5. References
Hampshire County Council may receive reference requests from future employers pertaining to current or former workers. It is Hampshire County Council’s policy to provide references and general guidance is available on the HR Website. However, if there has been a safeguarding concern in relation to a worker, the following guidance must also be followed.
5.1 Where a post involves working with children, it is likely a reference will request information relating to any concerns of a safeguarding nature (disciplinary or other), regardless of whether a sanction is current (a live warning) or in the past (an expired warning). This approach is recommended under the Local Safeguarding Children’s Board and is adopted by Hampshire County Council as part of the safer recruitment practices. Therefore if a reference requests this information, Hampshire County Council will provide details of safeguarding concerns, including those where any sanction has expired, for positions working with children and vulnerable adults only. For all other positions (those not working with children and vulnerable adults), information relating to performance management where the sanction has expired, will not normally be shared.
5.2 Allegations which have been proven to be malicious or unfounded should not be included in references.
5.3 Unsubstantiated allegations (i.e. neither proven nor disproven) should not normally be included on a reference, however in exceptional circumstances and where the allegations are in relation to children or vulnerable adults, it may be appropriate to refer to unsubstantiated allegations in references. An HR caseworker can advise on a case by case basis whether or not these allegations should or should not be included.
6. Guiding Principles in sharing information
‘Information Sharing: Guidance for practitioners and managers’ (Department for Children Schools and Families 2008) highlights seven golden rules for information sharing:
1. Remember that the Data Protection Act is not a barrier to sharing information, but provides a framework to ensure that personal information about living persons is shared appropriately.
2. Be open and honest with the person from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement, unless it is unsafe or inappropriate to do so.
3. Seek advice. If there is any doubt, without disclosing the identity of the person where possible.
4. Share with consent where appropriate and, where possible, respect the wishes of those who do not consent to share confidential information. Information may still be shared without consent if it is deemed to be in the public interest.
5. Consider safety and well-being. Base information sharing decisions on considerations of the safety and well-being of the person and others who may be affected by their actions.
6. Necessary, proportionate, relevant, accurate, timely and secure. Ensure that any information shared is necessary for the purpose for which it is being shared, is shared only with those people who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely.
7. Keep a record of a decision and the reasons for it – whether it is to share information or not. When information is shared, record what has been shared, with whom and for what purpose.
6.1 Please be aware that these 7 golden rules form part of DCFS guidance. They do not replace the Data Protection Act 1998 and all information sharing must still be compliant with the 8 Data Protection Act Principles
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