Safeguarding Issues and Settlement Agreements

You may be familiar with “settlement agreements”, legally binding contracts which can be used to end an employment relationship on agreed terms. They can often be useful to prevent progress via normal procedures from becoming protracted, or in cases where your preference may be that an employee’s employment is ended even though you may not necessarily be at a stage of proceedings where a fair dismissal would result. This can be the case when the evidence is perhaps not altogether clear but trust has been lost in an employee’s integrity. In such cases, settlement agreements can be a useful tool to bring matters to a quicker, and in the long run, perhaps cheaper conclusion. Nevertheless, because any breaches of safeguarding rules must be reported to the LADO and there is a duty to reach and record a conclusion wherever possible, the DfE’s “Keeping Children Safe in Education” statutory guidance for schools and colleges insists that settlement agreements must not be used in cases that have any safeguarding implications, even if an employee proposes to resign before or during a disciplinary process. This is because where there may be genuine grounds to believe that an individual is responsible for a breach of safeguarding rules, concluding matters via a settlement agreement would allow that individual to work at another school without any reference to the concern that was raised, which could obviously put others at risk in the future. A settlement agreement (formerly known as compromise agreement) which prevents the school or college from making a DBS referral when the criteria for doing so are met would likely result in a criminal offence being committed as the school or college would not be complying with its legal duty to make the referral. Even if an employee were to resign before the matter was concluded there is still a duty to record the allegation and any supporting evidence, and reach a judgment about whether it can be substantiated on the basis of all the information available.

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