Former staff, references and safeguarding disclosures
Employment law solicitor Natalie Ruane discusses the issues surrounding references, safeguarding disclosures and former staff.
Can disclosures be made to a safeguarding body about allegations against a former employee after an agreed reference has been given under a settlement agreement? Does a local authority’s duty of care towards an employee trump its statutory safeguarding duties under the Education Act 2002, the Children Act 2004 and the Safeguarding Vulnerable Groups Act 2006?
In the recent case of Melik Camurat v Thurrock Borough, Mr Camurat had signed a compromise agreement (now known as settlement agreements) with the local authority after a string of events in which Mr Camurat was accused of using inappropriate force and inappropriate language with children. The local authority’s disciplinary process was invoked three times culminating in a written warning after he confiscated a pupil’s mobile phone. A reference was agreed and annexed to the compromise agreement. In the reference the final incident and resulting penalty were specifically referenced. The local authority were subsequently approached by the police for assistance in relation to Mr Camurat and were asked to supply details of any enquiry or meetings that were held in relation to allegations involving Mr Camurat and other pupils. The local authority provided the police with a chronology of disciplinary problems and this was effectively reproduced in an Enhanced Criminal Record Check (ECRC).
Mr Camurat claimed that this resulted in him not obtaining a new job thereby suffering loss. He brought a claim for damages for breach of contract, misrepresentation, negligence and malicious falsehood. All the claims were dismissed.
It was held that the chronology was not misleading or unfair and did not impede the police in their exercise. No term was implied into the settlement agreement that the local authority would take reasonable skill and care when making statements to the police or ISA or that such statements would be “in the spirit of the reference” as in practice this would have meant a denial of cooperation with those bodies. Such implied term would be “a neglect of the defendant’s duty of care and therefore void”. This is particular so “when what was at stake was potentially the safety of children”.
Mr Camurat failed to discharge the burden of proving negligent misrepresentation or that he was induced into entering into the compromise agreement as a result of it. The reference was written with a view to sending it to prospective employers and nothing that Mr Camurat said or did during the course of negotiations related to the issues of safeguarding disclosures.
Duty of Care in Negligence
It was held that “there is no justification for imposing a duty of care on a supplier of information to the police, which would discourage those who would in good faith provide assistance to the police on safeguarding issues.”
The judge believed that the head teacher was driven by a genuine belief that Mr Camurat was a danger to children and she genuinely believed the police would carry out their own investigations before producing the ECRC. There was no malicious falsehood.
What does this mean for you?
The case is helpful to education institutions by confirming that a duty of care is not owed to an employee when making safeguarding disclosures. Institutions should always be alive to their safeguarding duties and comply with them.
However, the case also serves as a reminder not to expressly agree to waive safeguarding duties when providing an agreed reference as part of a settlement agreement.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.