Handling safeguarding disclosures

From 1 September 2026, the revised EYFS will require early years providers to tell staff and prospective staff that they must disclose information which may affect their suitability to work with children.

This expressly includes safeguarding disclosures which will be arrests and charges, alongside convictions, cautions, court orders, reprimands and warnings. For nursery managers, the challenge begins when somebody actually makes a safeguarding disclosure.

The first principle should be: do not jump straight from disclosure to dismissal.

An arrest, charge or allegation is not the same as a conviction.

A manager needs to establish what has happened, consider whether the information is relevant to the employee’s role and assess whether there is an immediate safeguarding risk.

Depending on the circumstances, advice may also be needed from the LADO, Ofsted, police or HR.

Safeguarding responsibilities are extremely important, but safeguarding does not “trump” employment law. Employers still have contractual obligations, discrimination law duties and, where applicable, unfair dismissal responsibilities.

This becomes particularly important from 1 January 2027, when the qualifying period for ordinary unfair dismissal reduces from two years to six months. Employees who already have six months’ service on that date will gain protection immediately.

Managers therefore need to avoid thinking, “This is safeguarding, so we can just dismiss.”

Where an employee has unfair dismissal protection, the employer will normally need both a potentially fair reason for dismissal and a fair process. Even where the employee has less than six months’ service, other protections can apply from day one, including discrimination, whistleblowing and certain automatically unfair dismissal rights.

A better approach is to meet with the employee confidentially and establish the facts.

Explain what has been disclosed and give them an opportunity to provide context.

Consider the seriousness of the information, when it occurred, whether children were involved, whether there is an ongoing investigation and whether temporary safeguards could manage any immediate risk.

Suspension should not be automatic either.

Depending on the circumstances, supervision, temporary alternative duties or restrictions on unsupervised contact may provide appropriate interim protection while enquiries are made.

Most importantly, document the decision-making process.

A manager should be able to demonstrate what information was considered, what advice was obtained, what safeguarding risks were identified and why the eventual employment decision was reasonable and proportionate.

The new EYFS disclosure requirements are designed to improve safeguarding. They should not result in managers treating every disclosure as proof that somebody is unsuitable.

Good safeguarding and good employment practice should work together; not compete with each other.

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If you need any assistance navigating employment law and safeguarding call the team on 01527 909436.