Leader magazineASCL - Association of School and College Leaders

Advice from the hotline...

The ASCL hotline is a completely confidential service available to answer members' questions on issues that arise in school/college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

Q I have seen the terms 'without prejudice', 'subject to contract' and 'in confidence' used on documents. What do they mean?

A The phrase 'without prejudice' at the top of a document or stated at the beginning of a conversation means that what follows cannot be used by either side as evidence in a court of law or tribunal without the joint consent of both parties. It is sometimes used during negotiations to enable both sides to discuss possible terms of a settlement without there being any commitment on either side while discussions are proceeding.

Courts may look at without prejudice communications if one side claims that an agreement has been reached and the other side disagrees. Similarly, if there is a claim that an agreement has been compromised by fraud or other deception, the without prejudice rule may be overturned. It is a useful phrase but caution is advised when relying upon it.

'Subject to contract' is a phrase used to define the status of documents and statements during the negotiating phase of reaching a settlement. Until the final agreement or contract is signed, it is not legally binding - that is, it is not a 'live' or 'open' document but simply a sheet of paper or email containing draft information.

The expression 'in confidence' indicates to the recipient of written or oral information that the person giving that information is doing so in the understanding that it will not be passed on or divulged to any third party without the prior permission of the person giving the information. The phrase can cause problems, for example, when used in a reference. The person receiving the reference may be asked to disclose it by the person about whom the reference is written, in which case s/he may have to do so.

Q Our school is concerned to ensure that we are acting within the law when checking documents regarding the employment of people from overseas in support and administrative roles. What do we have to do?

A This is an important issue and all employers have a responsibility to prevent illegal migrant working in the UK. The Immigration, Asylum and Nationality Act 2006 sets out the law and the provisions came into force in March 2008. It is important to avoid racial discrimination and it must not be assumed that someone from an ethnic minority or born abroad is not entitled to work here. Guidance can be downloaded from www.ukba.homeoffice.gov.uk/employers/preventingillegalworking

You must check and copy one or a specified combination of original documents. There are two lists of documents (one list for an ongoing right to work and the other for a right to work for 12 months). These lists can be found under 'preventing illegal working - guidance documents for employers' again on the Border Agency website www.ukba.homeoffice.gov.uk

The UK Border Agency website also has details of an employer checking service and there is a helpline on 0845 010 6677.

Q As a business manager, I have some concerns about how we check the suitability of a group or person using the school's facilities when there will be young people involved. If, for example, someone wants to book our hall for an age 14-16 disco and sell tickets to make a profit, what should we be doing to ensure that the organisers are appropriate people? We can ask for evidence that the organising adults are CRB checked, although we don't check other organisations such as the local RAF cadet group leaders. How far should we go?

A The document Safeguarding Children and Safer Recruitment in Education says in section 2.26: "Where the governing body provides services or activities directly under the supervision or management of school staff, the school's arrangements for child protection will apply. Where services or activities are provided separately by another body, the governing body should seek assurance that the body concerned has appropriate policies and procedures in place in regard to safeguarding children and child protection and there are arrangements to liaise with the school on these matters where appropriate."

All the organisations that work with young people and that use your facilities should be checked and you should also ask to see their public liability insurance. Well run organisations will have all this in place and will be readily forthcoming with their information.

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