The latest version of the statutory guidance Keeping Children Safe in Education (KCSIE) has been in force since September 2022. A number of changes were made from previous versions, which are set out in our detailed KCSIE briefing.
An additional paragraph has been added into Section 3: Safer Recruitment stating that schools should consider online searches as part of their due diligence checks on shortlisted candidates.
The paragraph, which is numbered 221, reads:
‘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.’
The inclusion of this consideration was explored as part of the consultation on KCSIE 2022. We opposed this inclusion, given the lack of detail provided on how these searches should be undertaken. For this to be justifiable and meet the obligations a school has under the Equality Act 2010 and the Public Sector Equality Duty (PSED), we believe the use of online searches needs to be contextualised, addressing points such as what is searched for, how it is searched for and how the information gathered is used.
We argued that a strict list of criteria needs to be developed to ensure that schools are not inadvertently or knowingly penalising candidates unfairly based on indistinct standards of what is and is not acceptable in their online presence.
Without further guidance from the Department for Education (DfE), we have developed a framework for conducting these types of search if schools decide to undertake this as part of their safeguarding checks. It is important to note, however, that as the guidance states schools ‘should’ consider, there is no legal obligation to do so, which would be expressed as an action schools ‘must’ take.
Online searches and Ofsted inspections
We have been made aware of suggestions to schools by a number of local authorities that Ofsted inspectors will check the school’s Single Central Record (SCR) to ensure pre-employment checks have been undertaken. More worryingly, guidance is circulating that seems to strongly imply schools will be penalised by inspectors if they cannot show that an online search has been conducted in every case, and that information to demonstrate this has been recorded on the SCR.
This is not in line with the current KCSIE guidance, in which the wording is clear a pre-employment check is not a strict requirement of a school’s safeguarding recruitment practices.
Ofsted has confirmed with the NASUWT that inspectors will continue to check a school’s single central record as part of its work around safeguarding. However, inspectors are not mandated to check whether online searches have been completed as part of any pre-employment checks.
Ofsted has stated this is because the use of online searches is detailed in KCSIE as best practice, not a legal requirement, demonstrated by the wording in paragraph 221 that ‘schools and colleges should consider’.
The school inspection handbook was last updated in September 2022, and does not include any addition to reference online checks. This is because of the non-mandatory nature of the wording in KCSIE.
Online searches framework
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It should be made expressly clear that the reason for the online search is to identify any matters that might relate directly to the employer’s legal duty to meet the safeguarding duties set out in KCSIE. There is no other purpose for a search.
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The fact that such a search will be undertaken, its purpose and the form it will take should be communicated clearly in the materials sent to potential applicants.
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Schools that wish to carry out online checks should only do so for shortlisted candidates and not all applicants. Online checks should therefore not be used as part of the shortlisting process.
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How the search will be undertaken should be determined in advance. The form of the search should be consistent for all candidates to ensure that practice is fair and is not open to challenge on discrimination grounds. It would not be right to conduct a broader or deeper search for some candidates and not others without a clear and objective reason. Considerations should include:
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Who will carry out the search? Where possible, this should be the same designated member of staff each time to eliminate differing opinions on the results of the online searches. If practicable and feasible, depending on factors such as levels of resourcing, the search should be carried out by someone who is not involved in the decision-making process.
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Individuals carrying out the searches should be fully versed in the purpose of the search and its parameters.
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What limitations will be placed on the search? Will the search be limited to information gathered through a general search engine, e.g. Google, or should other databases and platforms be searched? If so, which ones and why?
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A school must not base its decisions about staff appointments on any information gathered through an online search that does not relate to these specific duties. Searches must not be open-ended ‘fishing’ exercises.
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The fact that a shortlisted candidate has a limited or no online footprint must not be used to form adverse judgements about them.
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An online search should be undertaken only once and as a 'snapshot' of the applicant. The employer should not seek to monitor candidates' online or social media activities on an ongoing basis.
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The employer should not ask shortlisted candidates for access to password-protected online materials about them. The employer should not attempt to 'friend' a shortlisted candidate or 'add' them to their social media channels as a way of eliciting information.
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Details of the search, including the names of sites and platforms viewed, and when they were viewed, should be recorded.
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Schools that decide to conduct searches must be able to demonstrate satisfactorily how their collection, use and retention of search data and information is consistent with their data protection policies, the provisions of the UK GDPR and relevant guidance from the Information Commissioners' Office.
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Any information gathered through an online search that gives rise to legitimate areas of concern should be raised with the candidate directly in the interview. It would not be appropriate or fair not to appoint a candidate on the basis of information gathered through an online search that they did not have a reasonable opportunity to contest or explain.
Outsourced companies
We have been made aware that a growing number of software companies are actively targeting school leaders to sell intrusive software that can search private accounts on social media under the guise of a school fulfilling its safeguarding responsibilities.
We do not advocate the use of external suppliers, consultants or agencies to conduct online searches on behalf of a school. This limits oversight of the process and may lead to discrepancies in results if the same process is not followed each time.
Furthermore, given the lack of detail from the DfE, there is no oversight of the companies offering these services with regard to what is and isn't acceptable in conducting these searches.
More information
If you have a concern about the way in which recruitment and online searches are being managed in your school, you should seek advice and support from the NASUWT immediately.
We have raised with the DfE the concerns we have over the lack of detail provided to schools with regard to conducting online searches for safeguarding purposes. We will continue to seek opportunities to engage with the DfE on this issue and advocate for further guidance for schools to be provided.
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