Charity Commission harassment probe shows HR needs to do more, say experts

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The Charity Commission is investigating how Save the Children UK dealt with harassment allegations against its chief executive, it said today (11 April), the latest in a string of cases to raise issues about how charities deal with safeguarding.

The regulator for charities in England and Wales said it had new information concerning allegations about a former chief executive reported to have been accused of sending inappropriate text messages to other staff while at Save the Children.

This raised concerns, it added, about how the charity had handled various complaints, its reporting of the extent and nature of the allegations and its decision-making this year regarding these matters.

In February, the commission opened a statutory inquiry into Oxfam after alleged sexual abuse by workers came to light, and set out steps on how to improve safeguarding in the charity sector.

Rather than being an isolated issue, the commission revealed at a Safeguarding Summit on 5 March that it had received 80 reports of current and historical cases of safeguarding concerns spanning 26 charities.

It told People Management that it had set up a new taskforce to deal with the issue but, although it is the sector regulator, it does not conduct compulsory safeguarding checks on charities, nor does it mandate specific safeguarding processes during the recruitment of charity staff, volunteers or trustees.

A spokesperson said the commission “is not responsible for dealing with incidents of actual abuse and does not administer safeguarding legislation”.

It does, however, identify regulatory concerns via a range of channels, from proactive monitoring and reports from charities themselves, to whistleblowing and complaints.

“Charity trustees are required to fully and frankly report any serious incidents involving safeguarding to [it], and we have repeatedly reminded them of this responsibility,” the commission said.

As no official single institution actively monitors charities’ safeguarding, preventing misconduct and harassment within and by employees at charities is up to each organisation and its HR function.

The employer is responsible for safeguarding employees and potentially vulnerable clients or end-users, hence HR’s role in conducting appropriate pre-recruitment checks is vital.

Ben Smith, partner at Charles Russell Speechlys, said charities’ trustees have a duty of care to their service users to put the correct safeguarding policies in place and to avoid harassment.

“Charities working with vulnerable groups have to make sure their users are safe and protected from harm,” he said. “There’s a duty of care on the trustees of charities to make sure that they put appropriate safeguarding practices in place, of which the starting point is carrying out DBS checks on potential employees.

“The crux of these practices is about the DBS checks, which include those who work with vulnerable groups.”

However, Smith added: “Employers should only really be making these checks for certain roles that the government has listed as a regulated job” – which means many employees may not be checked for past convictions, for example.

‘Regulated activity’ is unsupervised activity, such as personal care, teaching or driving a vehicle, carried out in relation to children or vulnerable adults, but excludes familial arrangements and personal, non-commercial arrangements.

Work defined as regulated activity exempts the post from the Rehabilitation of Offenders Act 1974. Therefore, employers may need to ask before or during recruitment if job candidates have previous spent or unspent convictions.

DBS checks are basic, standard, enhanced or enhanced – which lists individuals barred from work with children and those barred from work with vulnerable adults. The latter covers employee roles that involve regulated activity but does not cover staff behaviour towards other adult employees.

Only roles that include continuous unsupervised, regulated activity fall under the enhanced DBS list, with the option to check if the candidate is registered on the adults or children’s barred lists.

The commission said: “It is an offence to knowingly employ someone in a role from which they are barred.”

A DBS check is not a full safeguard for employers, as certain convictions and cautions, listed in the DBS Filtering Guide, are excluded from an applicant’s DBS certificate under time limits and age.

Basic DBS checks only report unspent convictions and cautions under the terms of the Rehabilitation of Offenders Act, not spent convictions, cautions warnings, reprimands, other relevant police information – or whether the applicant is barred.

As such, the Ministry of Justice recommended that employers ask potential candidates during pre-recruitment if they have any convictions, cautions, reprimands or final warnings not ‘protected’ under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

Smith told People Management that another potential HR safeguarding issue is that “a DBS can take up to eight weeks. The applicant can’t start in the role until the DBS is completed, which can cause frustration on both the applicant and employer’s part.”

Helen Shuttleworth, Youth Sport Trust head of HR and safeguarding lead officer, said its employee and volunteer roles depend on a clear DBS, ID checks and references for roles where the applicant has worked with children.

Craig Vincent, Stone King’s head of HR consultancy services, said charities and aid agencies with employees performing ‘regulated’ work could also introduce a safeguarding recruitment policy.

“A typical policy will ensure that safeguarding checks are performed at the same time as right to work checks,” he said. However, “policy isn’t mandatory as statutory guidance can be followed”, Vincent added.

A further statutory safeguarding problem for charities is that a DBS check does not expire, and employers are not legally obliged to carry out further employee checks beyond recruitment, he said.

It is therefore “essential” that HR keeps up-to-date records of checks it conducts for staff, contractors and volunteers who perform ‘regulated activity’, he said.

In its latest safeguarding statement, the commission said it would be likely to become involved in one-to-one engagement with charities where regulatory priority risks, such as serious harm to children or adults, are concerned.

This may include fulfilling “good safeguarding practice for individuals working with at-risk groups and children” and “carrying out robust recruitment practices”.

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