Q&A: Disqualification by Association

Practitioners can be disqualified from working in childcare if they share a household with someone who is disqualified. NDNA early years adviser Fiona Bland explains more about staff disqualification by association…

Q: How can a member of staff be disqualified from working in childcare by someone in their household?
A: Nursery staff could be disqualified from working in childcare if they are working in, or sharing, a household with someone who is disqualified from working with children. At the moment the EYFS states that:

[P]roviders must ensure that people looking after children are suitable to fulfil the requirements of their roles. Providers must have effective systems in place to ensure that practitioners and any other person who is likely to have regular contact with children (including those living or working on the premises) are suitable.

NDNA does not feel this gives providers clear guidance and is urging the Department for Education to address the situation.

The key question around this type of disqualification is if the staff member knows a person in their household is disqualified from working with children. It can be any member of the household, including partners, children, foster children, house-share colleagues and lodgers. But the person must be knowingly living with someone who is disqualified; they are not guilty of an offence if they do not know a person they are living with is disqualified. For example, a member of staff may live in shared housing and may not have any knowledge about the people they live with, including whether those people are disqualified. Neither the member of staff nor the provider has any legal requirement to seek this type of information.

There is also a common misconception that it is only the registered provider who can be disqualified because of a household member, but in reality it is every member of nursery staff.

Q: Is it the responsibility of the employer to find out if staff live with someone who is disqualified, or does responsibility lie with the employee?
A: The responsibility to inform an employer lies with the employee. If they are aware, or become aware that a fellow member of their household is disqualified, they must inform their employer, who in turn must contact Ofsted.

The law clearly states it is when an employer ‘knowingly employs’ someone who is disqualified that it is an offence. Providers who regularly ask staff to confirm there are no changes in their circumstances, and act on any information received that brings a member of staff’s suitability into doubt, are taking due diligence. Providers must show they are taking appropriate steps to ensure they do not knowingly employ someone who is disqualified.

If, however, an employer receives the information through a third party, the information should be treated as an allegation. The nursery should follow the policies and procedures already in place for reporting allegations against a member of staff.

Q: Are there any circumstances where the employee can carry on working in childcare?
A: In certain situations and circumstances Ofsted can issue a waiver to allow a person to continue working with children. It is down to the individual, not their employer, to apply to Ofsted for a waiver. Each waiver application will be considered on its own merits and a waiver may be granted with limitations – for example, it might apply to one particular type of employment or to particular premises. If a waiver is granted then the employer must make a decision as to whether they wish to employ/continue employing the member. For more details on waivers see Ofsted’s Compliance, Investigation and Enforcement handbook, Chapter 5 1a.

In some cases, the law does not allow Ofsted to consider granting consent to waive the disqualification. It does not have any power to waive disqualification in relation to childminding or childcare if a person:

● is included in the list held by the Disclosure and Baring Service (the barred list): ow.ly/u6Erv;

● has been found to have committed an offence against a child within the meaning of section 26(1) of the Criminal Justice and Courts Services Act 2000 – ow.ly/u6EP0 – and the court has ordered that she or he is disqualified from working with children under section 28(4), 29A(2) or 29(4) of the same Act.

Visit the NDNA website for more support on all aspects of running a successful nursery business.