When the employment of a teacher or other school or college employee ends, it may be subject to a settlement agreement. Settlement agreements aim to avoid lengthy – and often costly – legal proceedings.


In some cases, the employee may have agreed to move on, the employer/employee relationship having broken down. However, schools and colleges are required, by law, to request references for prospective employees, making these a necessity.


Having an eye to the future, the employee may request to see a copy of the reference. Although employers are not required in law to share the contents of any reference, it is considered good practice to share these in advance of sending to a prospective employer. Any refusal by a school or college to provide a reference may lead to a breach of contract as this could result in a teacher being unable to secure future employment.


But what should be included in a reference? There are already strict legal requirements and statutory guidance in place governing what an employer must and should include in a reference for someone who will be working with ‘children’ (under the age of 18 years), specifically around the subject of safeguarding.


Let’s take a look at what schools and colleges in England must include in references, and then examine the effect of a settlement agreement.


Providing a reference

Paragraph 224 of the statutory safeguarding guidance [see the end of this article] says that “when asked to provide references, schools and colleges should ensure the information confirms whether they are satisfied with the applicant’s suitability to work with children and provide the facts (not opinions) of any substantiated safeguarding concerns/allegations that meet the harm threshold.


They should not include information about concerns/allegations which are unsubstantiated, unfounded, false, or malicious.”Because such references are crucial to the recruitment process in schools and colleges, they should be provided promptly so as not to delay the employment process.


Any concerns or allegations that do not meet the harm threshold [see below] and which have been found to be ‘false, unfounded, unsubstantiated or malicious’ should not be included in the reference.


If such concerns or allegations were included, this may unfairly prejudice an applicant and leave the school or college open to legal action.


Allegation outcome definitions

Under Paragraph 399 of the statutory safeguarding guidance, the definitions that should be used when schools and colleges determine the outcome of an allegation are:


  • Substantiated: there is sufficient evidence to prove the allegation.
  • Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive or cause harm to the person subject of the allegation.
  • False: there is sufficient evidence to disprove the allegation.
  • Unsubstantiated: there is insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.
  • Unfounded: to reflect cases where there is no evidence or proper basis which supports the allegation being made.”


What is the harm threshold?

Paragraph 355 sets out the ‘harm threshold’. This has been reached when a person has:


  • behaved in a way that has harmed a child, or may have harmed a child and/or
  • possibly committed a criminal offence against or related to a child, and/or
  • behaved towards a child or children in a way that indicates they may pose a risk of harm to children, and/or
  • behaved or may have behaved in a way that indicates they may not be suitable to work with children.” This includes behaviour that has happened outside school or college, which is known as a transferable risk’.

Low- level concerns

‘Low- level concerns’ are concerns that do not meet the harm threshold and include inappropriate behaviour such as being overly familiar with children, showing favouritism or taking photographs of children contrary to internal policy. Part 4 of the statutory safeguarding guidance says that low-level concerns should not be included in references, unless they are:


  • substantiated safeguarding concerns or allegations (such as a group of low-level concerns about one individual); and
  • they meet the harm threshold.
  • Other low-level concerns should be included if they would usually be included in a reference (such as issues relating to misconduct or poor performance).

Settlement agreements

As we mentioned at the start of this post, a teacher or other employee may have ended their employment at a school or colleague with a settlement agreement in place. A settlement agreement is a legally binding contract under which the individual waives their right to make a claim at an employment tribunal about the issue covered by the agreement, in return for particular concessions from the employer.


The terms of a settlement agreement may state that the school or college will not discuss safeguarding (substantiated or otherwise) with any third party. If this is the case, it should be noted that it does not override a school or college’s duty to provide certain safeguarding information in references, as set out in the statutory safeguarding guidance.


Similarly, schools and colleges are required to report safeguarding concerns. For example, they may need to make a report of safeguarding concerns and the outcome to a Local Authority Designated Officer (LADO). A settlement agreement does not remove that obligation either.


In short, the key points to bear in mind are:


  • A settlement agreement cannot override schools or colleges safeguarding obligations.
  • Schools or colleges are not in breach of a settlement agreement by fulfilling their statutory obligations to inform the LADO of safeguarding concerns.
  • A settlement agreement cannot restrict a school’s or college’s safeguarding duties. Any such restriction imposed by a settlement agreement would be void.

More support

The rradar legal advisory service team has extensive experience in safeguarding matters. The team can help schools and colleges with any questions they have about safeguarding in an education setting. Call us on 0800 955 6111. We are open 8:00am until 6:00pm Monday to Friday, except bank holidays.

The statutory safeguarding guidance for schools and colleges, mentioned throughout this article can be found at this website.