Complaints Policies
Maintaining a strong reputation is paramount for independent schools to ensure the maintenance of higher-level education services that they provide.
Complaints about the conduct of staff is a reputational risk for independent schools, and it is crucial to have clear policies and procedures in place that set out how complaints will be dealt with.
We set out some factors below that independent schools should be considering when implementing a complaints procedure:
· Accessibility: Information as to how a complaint can be made and how it will be handled should be readily available to all staff members, such as providing the information on the school’s website or staff intranet page. Schools should also specify the methods by which complaints can be made, such as in person, over the phone, or in writing. We recommend having a policy that sets out the complaints process in detail.
· Options to address the complaint: It is appropriate to encourage complainants to resolve their complaint directly with the person/people involved in the first instance. However, where this is not appropriate (e.g. where the allegations may be of a serious nature) or the complainant does not feel comfortable addressing the issue themselves, other options should be available. These options could include having an impartial third party from the school, such as a member of the school’s human resources team, assist in facilitating a discussion between those involved. Additionally, there should be a procedure in place for employees to make a formal complaint, encouraging them to include specific details such as relevant dates and the names of witnesses. We generally recommend that any complaints policy provides the school with a degree of discretion and flexibility in how it responds to formal complaints, including any decision to formally investigate a complaint.
· Training for staff responsible for dealing with the complaints: Staff who handle complaints, such as those in human resources or senior staff members, should be skilled in their roles and fully trained in responding to and managing the complaints process.
· Dealing with anonymous complaints: Employee related processes must be conducted in good faith and in accordance with the principles of natural justice. The general principle is that all relevant information must be disclosed to the subject of a complaint, including the identity of the complainant and witnesses, so an employee can properly respond to the allegations that are made against them. This also aligns with the principles of natural justice. We recommend that the complaints policy outlines that if a complainant wishes to remain anonymous, this may limit the school’s ability to fully and effectively investigate the complaint.
Whistleblowing and Protected Disclosures
Employees (along with others, such as a school’s secondees, contractors, board members, and volunteers) also have the option of making a protected disclosure to a school or an external authority regarding “serious wrongdoing”. This is commonly known as whistleblowing. The legal framework for handling protected disclosures is set out in the Protected Disclosures (Protection of Whistleblowers) Act 2022 (PDA).
Under the PDA, a disclosure of information will be a protected disclosure if the discloser:
- believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the school;
- discloses information about that in accordance with the PDA; and
- does not disclose it in bad faith.
It is important to note that “serious wrongdoing” and “serious misconduct” are different concepts. The PDA sets out that “serious wrongdoing” includes:
· a criminal offence;
· a serious risk to public health, public safety, the health or safety of an individual, or the environment;
· a serious risk to the maintenance of the law;
· unlawful, corrupt or irregular use of public funds or resources, including where these are used in the public sector; or
· oppressive, discriminatory or grossly negligent acts, or gross mismanagement by a public sector employee or a person performing a public function.
In some instances, serious cases of bullying and sexual harassment could constitute “serious wrongdoing”, where they give rise to a serious risk to the health and safety of an individual and/or give rise to a criminal offence.
The PDA requires that a receiver of a protected disclosure must use their best endeavours to keep information which may identify a discloser, confidential. However, there are several exceptions to this, including where there are reasonable grounds to believe that the release of the identifying information is essential for the effective investigation of the disclosure. The PDA also specifies some procedural steps that must be taken before disclosing identifying information. We recommend that a school seeks legal advice where it considers it may need to disclose identifying information.
The PDA also provides a number of protections to employees who choose to make protected disclosures, which include protection from retaliation and victimisation, as well as immunity from any disciplinary proceedings that result from making a protected disclosure. Breaches of these protections may provide an employee with the ability to bring a personal grievance under the Employment Relations Act 2000, or a claim for unlawful victimisation under the Human Rights Act 1993.
Conclusion
Staff in charge of dealing with complaints should understand the difference between how a school should respond to a standard complaint, in comparison with a protected disclosure. Having clear policies that distinguish between these two processes is a helpful starting point, and it is crucial that schools follow any processes and requirements set out in these policies.
If you have any questions or queries about the above, or require assistance with drafting or updating your school’s complaints policies, please get in touch with our experts.
Rachael Judge, Partner
rachael.judge@simpsongrierson.com
Rachel Nightingale, Senior Solicitor
rachel.nightingale@simpsongrierson.com
simpsongrierson.com
