Questions we have been asked this month

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22 November, 2018

Q. If the governing board receives an anonymous complaint about a head-teacher alleging inappropriate behaviour, what steps should the board take?

A. If the anonymous complaint was made by a member of staff, then any whistleblowing policy that is in place may apply. Such a policy is likely to provide that complaints should not be made anonymously due to the difficulties that the board would have investigating. However, that is not to say that such complaints should be ignored, and the board should still take reasonable steps to investigate.

If the nature of the complaint does not fall within the remit of the whistleblowing policy, or if it is an external complaint from a parent or member of the public, it may be that another policy is applicable. If it relates to safeguarding then the Safeguarding Policy may apply for example, or if it relates to bullying, sexual harassment or any form of discrimination then the School's Dignity at Work Policy may apply. Again, the board may have difficulties investigating due to the anonymous nature of the complaint, but it should still take reasonable steps to investigate.

Reasonable steps to investigate may include identifying individuals or any other organisation that may have knowledge of the incident. The board would need to assess whether it was necessary to interview them and consider speaking to the head-teacher regarding the allegations.

If the complaint is not of a particularly serious nature and does not unduly impact the head-teacher's role or the School, the board may come to the conclusion that the anonymous nature of the allegation has restricted the investigation and decide not to pursue it further.

Once the board has considered the complaint and come to a conclusion (even if it is the case that it is not necessary to take any further action), it should make a written record of its decision. It should also consider whether any of its policies should be modified, or new policies should be put in place. Further, it should consider notifying staff that any complaints will be investigated thoroughly and on a confidential basis as far as possible but that anonymous complaints hinder the board's ability to fully investigate complaints.

How can pupil information be shared for safeguarding purposes without breaching GDPR?

GDPR is designed to keep information safe, but is not intended to prevent or limit you from sharing information when it is necessary to safeguard a child.

You are under an obligation to share information with the appropriate people if you believe that it is necessary to safeguard and protect a child. Safeguarding a child understandably takes precedence over data protection.

Information sharing for safeguarding purposes will almost always fall under the 'legal obligation' lawful basis. If the data is classed as 'special category' data, you will also need a 'condition' for processing the data. Safeguarding will fall under the 'necessary for reasons of significant public interest on the basis of law' condition. This condition justifies sharing special category personal data about an individual without their consent, either because they cannot give consent, obtaining their consent cannot be reasonably expected, or gaining their consent would place a child at risk.

When sharing information, ensure that the data shared is relevant to the issue at hand, necessary and proportionate. Ensure that it is shared in a secure way and accurate and detailed records of what has been shared, and why are recorded on the safeguarding file.

For more information contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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