'Unfair' disqualification rules for nursery staff removed

Following a public consultation between May-July 2016, the Department for Education has removed the rule banning early years staff from working with children in non-domestic settings and schools because of who they live with. The changes will come into effect from September.

A decision on the consultation has been long awaited as the Government was due to publish its response in the summer of 2016.

Under current legislation, an individual living with someone convicted or cautioned for a violent or sexual offence is disqualified from working with children. This applies to household members such as partners, children, including foster children, flatmates and lodgers.

Practitioners are able to apply for a waiver from Ofsted, but it can take weeks to be processed by the inspectorate, causing difficulties for staff and settings who do not pose a risk.

The automatic ban was enforced in February 2015 and received heavy criticism from the early years sector who branded it ‘unfair’, ‘ineffective’ and ‘unclear’.

The DfE’s consultation document put forward three options:

• a complete removal of disqualification by association in nurseries and schools.
• to retain disqualification by association, but introduce a new right to make representations to Ofsted before the disqualification takes effect.
• to retain disqualification by association, but reduce its scope and introduce a new right to make representations to Ofsted before the disqualification takes effect.

The majority of respondents said they preferred the first option. As such, the necessary legislative changes to implement the removal of disqualification by association in schools and registered non-domestic childcare settings will now take place.

The change in law will also apply to headteachers in respect of schools and the registered person in non-domestic childcare settings. Where registered childcare is provided on domestic premises, the disqualification by association arrangements will continue to apply.

The National Day Nurseries Association (NDNA) has welcomed the change in rules.

Chief executive Purnima Tanuku said, 'We welcome the Government’s clarity on this issue and are pleased it has listened to the early years sector.

'The existing rules about disqualification by association were very complicated and unclear. We first highlighted this to the Department for Education a number of years ago and developed resources to help nurseries manage this issue.

'Nurseries must have robust safeguarding procedures which should ensure that all children are safe while any practitioners whose household arrangements are looked into carefully remain in situ.'

A spokesperson for Unison the union said, ‘Unison welcomes the removal of these regulations. They resulted in thousands of early years staff being needlessly suspended from work and added nothing to child protection measures. 

‘We believe that many schools and nurseries have unlawfully collected and retained data about staff and their household members and that settings will need to destroy the information that they have collected about third parties.’ 

'We believe that the regulations should have been scrapped entirely for non-domestic settings as there is no evidence that early years workers pose any greater risk to children than those working with older children.’

The Pre-School Learning Alliance has however raised concerns about the move to completely remove disqualification by association in early years settings.

Chief executive Neil Leitch said, ‘Any changes to Government regulations impacting schools and early years providers should always have the safety and well-being of children as their utmost priority, and so we are both disappointed and concerned that the Government has decided on a wholesale removal of existing disqualification by association rules.

‘We know that the current rules are often a source of confusion and difficulty for early years providers and it’s clear that steps to make these rules clearer and less onerous for practitioners have been long overdue. Nevertheless, it is vital that this is balanced with the need to ensure the safety of the children attending schools and early years settings and so while we recognise that this decision is supported by the majority of consultation responses, we still do not think that the Government’s chosen approach strikes this balance.’

• The DfE's consultation response is here