Keeping Children Safe in Education - Top tips for dealing with ‘low-level’ concerns

6 mins

Posted on 02 Dec 2021

Keeping Children Safe in Education - Top tips for dealing with ‘low-level’ concerns

Department for Education releases new guidance

The latest updates to the statutory guidance introduce a new duty on schools and colleges to deal with “low-level” safeguarding concerns. While there is a clear rationale for picking up on possible safeguarding concerns as early as possible, putting this new duty into practice may not be straightforward. 

Read our top tips for implementing the new guidance

1. Understand the new duty 

Schools and colleges must ensure that they promote an open and transparent culture in which all concerns about adults working in/on behalf of the school or college are dealt with promptly and appropriately. This enables you to catch any inappropriate or problematic behaviour early and potentially minimise the risk of abuse. Under the new guidance, schools and colleges must deal with ‘low-level’ concerns as well as more serious allegations that meet the “harms threshold” (i.e. allegations that might indicate a person would pose a risk of harm if they continue to work with children in a school/college). A ‘low-level’ concern is any concern that an adult working in/on behalf of a school/college may have acted in a way that is inconsistent with the staff code of conduct, which isn’t serious enough to meet the harms threshold. The facts and context will, of course, be key here but examples in the guidance include:

  • Being over friendly with children
  • Having favourites
  • Taking photographs of children on their mobile phone
  • Engaging with a child one-to-one in a secluded area or behind a closed door or
  • Using inappropriate sexualised, intimidating or offensive language

2. Update your policies 

Schools and colleges should have a low-level concerns policy within their staff code of conduct and safeguarding policies. This should set out what a low-level concern is and the importance of sharing these, as well as emphasise the purpose of the policy. You should also set out how you will deal with a low-level concern i.e. it will be referred to the headteacher and appropriate and timely action will be taken. Ensure you also cover how you will deal with a concern raised via a third party. 

3. Get staff on board 

In order for schools and colleges to catch any inappropriate or problematic behaviour early, you need to create an open and transparent culture where staff feel comfortable with raising any concerns, even “nagging doubts”, about colleagues or even themselves. Simply asking staff to read your updated policy is unlikely to achieve this. You will need to discuss this with staff, explain what you need from them and why, ask them if they have any concerns over the new guidance and allay any fears or misunderstandings they may have. They may be reluctant to report a low-level concern about a colleague for fear of being judged, looking stupid or being ostracised. They might also be worried about the colleague or other staff finding out. Having an open discussion about this and explaining that anyone who speaks out will be commended and protected should help to reassure staff and create an open culture. Holding staff training sessions could also help staff to feel confident in distinguishing appropriate behaviour from concerning, problematic or inappropriate behaviour in themselves and others.

4. Manage the risks 

As with any interaction between employees, if not handled properly then implementing this new guidance could potentially lead to disputes and employment law claims. For example:

  • An employee who is the subject of a low-level concern may say that they are being bullied by the person who raised it, or that they are being harassed or discriminated against by the school. To avoid this, it may help to speak to the employee about the concern in an informal way and raise it sensitively, rather than in a formal meeting. A quick chat may resolve matters and prevent things from escalating. It is equally important to keep a clear record and notes of the concern and any investigation or follow up in case there is a dispute   
  • The person raising the concern may be making a grievance about a colleague and/or the school, which will likely need to be investigated separately. You may want to signpost your grievance policy within your low-level concerns policy
  • Also bear in mind that an employee who has raised a concern will likely have blown the whistle and so should not be treated badly or dismissed for reporting the concern 

5. Record the concerns raised properly 

All low-level concerns should be recorded in writing. There is no set format but the record should include details of the concern, the context in which the concern arose and the action taken, plus the rationale for the decisions made. Schools/colleges should note the name of the individual sharing the concern. If they wish to remain anonymous then that should be respected if possible. If this will cause issues then you can ask the individual why they wish to remain anonymous and take advice from your legal advisers. 

6. Be careful when it comes to references 

Schools and colleges should only provide substantiated safeguarding allegations in references. Low level concerns should not be included in references unless they:

  • Relate to issues which would normally be included in a reference, for example, misconduct or poor performance or
  • Met the threshold for referral to the LADO and were found to be substantiated 

7. Identify any patterns 

It is a good idea to keep your records of any low-level concerns in a central file, as well as the individual’s personnel file. Reviewing this can help you spot any patterns of inappropriate or problematic behaviour in relation to a certain employee or group of employees or perhaps a certain department or setting. You should then decide on a course of action, which may involve disciplinary procedures and/or referral to the LADO, reviewing your policies or providing extra training.

8. Don’t forget about GDPR 

Schools and colleges can decide where records of low-level concerns are kept, but they must be kept confidential, held securely and comply with Data Protection laws. The guidance recommends retaining them until the individual leaves their employment and you would likely need to be able to justify holding on to them for much longer than this. Bear in mind that concerns raised will contain personal data and so could be picked up in a data subject access request. 

9. Take advice if you’re not sure 

As your staff become more comfortable with raising concerns, it may be difficult to know whether a concern is low-level or meets the harms threshold and needs to be referred to the LADO.  Depending on your relationship with your LADO and their availability, you might need to run low-level concerns past them for their view. If in doubt, you might also want to chat it through with your advisors. 

If you have any questions about safeguarding issues, please get in touch with any member of the Education Team. 

If you need help with any education matters visit our Education services page for more information.

Key contacts :

Simon Henthorn

Simon is an expert in education and employment law. He has over 15 years’ experience advising schools, colleges, associations and individuals on all aspects of education law, including employment and safeguarding matters.

  • Partner & Head of Education
  • T: +44 (0)20 3696 7172
  • Email me

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Elizabeth Timmins

Legal Director Liz Timmins, is a highly experienced employment and education lawyer with particularly broad experience gained from working in law firms ranging from full-service nationals to well-known employment law boutiques.

  • Legal Director
  • T: +44 (0)20 3696 7177
  • Email me

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The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.

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