What is the new change to safer recruitment under KCSIE?
The new KCSIE provides at paragraph 220:
In addition, as part of the shortlisting process schools and colleges should consider carrying out an online search as part of their due diligence on the shortlisted candidates. This may help identify any incidents or issues that have happened, and are publicly available online, which the school or college might want to explore with the applicant at interview.
Of significance is the use of the words “should consider”. In theory therefore, all that is required is to consider undertaking the searches. On that basis, one option may be not to undertake the searches at all since the requirement is not expressed as a mandatory requirement, but rather a consideration. However, we refer to the Summary section of KCSIE which states:
We use the terms “must” and “should” throughout the guidance. We use the term “must” when the person in question is legally required to do something and “should” when the advice set out should be followed unless there is good reason not to.
Our view however is that, although there is an option not to undertake the online search, it is advisable that the searches are undertaken albeit within carefully defined perimeters (see further below regarding the importance of adopting a policy). If a school or academy trust chooses not to undertake searches at all, there should be a risk assessment undertaken and a record kept of how and why that decision was arrived at. In practice, the majority of schools, academies and dioceses will follow KCSIE even where a particular requirement is not expressed as a mandatory one, so that there can be no question as to whether they are meeting their obligations under KCSIE.
As at the date of this briefing, the DfE is yet to provide any supporting guidance on what ‘online search’ means, or whether, when and how an employer may go about searching prospective candidates’ internet and social media presence, and how any information gleaned from such searches could lawfully be used. Our Schools HR team has seen an influx of enquiries from our school and academy clients asking us whether they should perform such checks, how they should perform them and whether there are any risks associated with carrying out these checks.
We have also seen a number of third-party companies/consultancies offering to perform the searches (most likely for a fee) to schools and academies.
So, in preparation for the new academic year, what do you need to know to get ahead of the curve?
Considerations when deciding whether to undertake online searches of prospective candidates
In the absence of any further guidance from the DfE, we would suggest the following general approach when considering conducting online searches in respect of prospective candidates:
- Searches should be made in relation to shortlisted candidates only to reduce the risk that anyone not shortlisted could argue that they have suffered discrimination, for example, because of information gleaned from a search of the internet/their social media.
- In the way that equality monitoring usually sits outside of the recruitment process, usually by way of a separate, anonymous form submitted separately, this separation of processes should also be considered for online searches.
Where the employer opts to undertake the searches ‘in-house’ (as opposed to appointing external agents), it is advisable that those engaged in the recruitment process should not be involved in the online/social media sift so as to avoid allegations of impropriety, unfairness or discrimination in the decision to appoint (or reject) a particular shortlisted candidate.
The individual who performs the sift would also need to have safer recruitment and equality/employment law knowledge/training. They should be trained to provide only the information about an applicant that could pose a genuine risk to the school, its pupils and/or its reputation.
The individual undertaking the searches may also discover, through their searches, lots of other information about the applicant which an employer may not otherwise have known and which could be protected e.g. a protected characteristic such as sexual orientation, disability, religion or belief, etc. This information would very likely not be relevant to the question of whether they are suitable to work at a school/with children and young people, which is really what an employer is trying to determine when undertaking the searches. For this reason, it is important that this type of information is not shared with decision makers in the recruitment process, so as to avoid allegations that it played a part in the appointment (or failure to appoint) a particular candidate. Making sure that the recruitment panel and those involved with those processes do not have that knowledge is key to successfully defending any decision not to offer employment if later challenged by the job applicant.
For the reasons set out above, outsourcing the task to external agencies is an attractive option as there can be no question about the separation between those undertaking the checks and those involved in the recruitment process. The downside of course is the associated cost of doing so, but may well prove more cost effective in the long run given the resources that would be taken up and the additional training that would be required if the searches are undertaken in house.
Extent of the searches – the practicalities and the importance of adopting or updating a formal policy
In terms of the extent of the searches and how to go about them, our practical steps as to what may be reasonable in all the circumstances may include:
- Checking social media profiles for any publicly available information, for example inappropriate posts, comments or images (Twitter; Facebook; YouTube; TikTok; Instagram; LinkedIn etc)
- Doing a name search in Google and checking what results are generated in both the general results page and the ‘News’ tab (the latter may potentially throw up news reports relating to the individual). You may also consider searching the name coupled with the individual’s former school or employer.
It is vitally important that the same approach is adopted for all short-listed candidates so there can be no suggestion of difference in treatment or an inconsistent approach. For this reason, we recommend updating your recruitment policies to reflect the changes to KCSIE. Such changes should be effective from 1 September 2022, when the requirement to undertake online searches as part of safer recruitment comes into force. The policy should clearly set out:
- The reason why the searches are necessary – usually this would relate to the school/academy’s reputation and its statutory/safeguarding obligations. It is not intended to be a snooping exercise or fishing expedition;
- What sites/types of sites will be searched as part of the recruitment process;
- How far back the searches will go;
- What the searches are primarily concerned with (evidence of offensive or inappropriate behaviour, jokes or language, discriminatory comments, inappropriate photos, drug or alcohol misuse and anything that suggests the applicant may not be suitable to work with children or young/vulnerable people);
- Who undertakes the searches (see our advice above relating to in-house checks and the option of outsourcing the work);
- What you do with the information – you should treat it in the same way as other pre-employment checks and comply with GDPR requirements, including in relation to retention (most job applicants have 3 months in which to bring a claim plus the Acas early conciliation period and so we recommend that any such retention periods take account of these timeframes to ensure that key evidence is not destroyed before the time limit to bring a claim has expired);
- What to do if the searches throw up areas of concern (e.g. escalation to HR/SLT/Governing Body/Board) and seeking swift legal advice as necessary.
Updating your existing recruitment processes and associated documents
In addition to updating policies and procedures, it would be prudent to update your offer letters to include satisfactory online searches as being one of the several conditions that must be met before employment is confirmed, in the same way that DBS checks, right to work and satisfactory references are pre-conditions of employment.
Candidate privacy and other considerations
A further consideration is how undertaking online searches marries with the right to private life under Article 8 of the Human Rights Act 1998.
We consider that as long as an employer has a legitimate and lawful reason to undertake the searches (and in this case an employer can rely on KCSIE being statutory guidance to justify the need to do so) then, provided the action taken is lawful, necessary and proportionate, and within a defined framework that is applied consistently to all candidates, it is unlikely that Article 8 would be infringed.
Online searches are expected from 1 September 2022
Ultimately, KCSIE expects that online searches should form part of the pre-employment checks from 1 September 2022. If a school or academy trust decides not to adopt this change, it needs to be in a position to show a good reason for that decision.
The risk of not adopting the change may mean that it proves difficult to justify a decision to appoint a particular candidate if information later comes to light which renders them unsuitable to work with children and young/vulnerable people, but which would have been thrown up by an online search had one been carried out. Not adopting the change may also indicate that the employer is not taking its obligations under KCSIE seriously, as well as potentially allow certain unsuitable candidates to ‘slip through the cracks’ which safer recruitment seeks to avoid and address.
Searching an individual’s online/social media presence provides another avenue by which candidates could potentially argue unfairness or discrimination in the recruitment process. Adopting some of the practical steps set out above will help reduce the risk of such complaints. You should also consider our briefing note on Withdrawing Offers of Employment should you be contemplating withdrawing an offer.
Our dedicated specialist Schools HR team of lawyers can assist with updating workplace policies and recruitment documentation/processes and with any complaint/claim related to pre-employment checks.
For more information or to discuss your needs and how we can support you, please contact our Schools HR team on 0345 026 8690 or schoolshr@wslaw.co.uk
