Keeping secrets...

Richard Bird shines a light on the complexities of confidentiality and how far schools and colleges, and their governors, are expected to respect it.

Every organisation has things it would rather people outside didn't know. What information is confidential and how far can it be protected?

It may be helpful to distinguish between three things: the legal concept of confidentiality in employment which allows the employer to sue for commercial damage (unlikely for a school or college); a breach of good faith and loyalty for which the employer may potentially dismiss; and the individual right to privacy and to have confidences respected.

The law about confidentiality developed round the implicit duty of an employee to act in good faith towards the employer. So making public damaging information about the institution's financial position or the state of staffroom morale is probably a breach of confidence as well as disloyalty, and such conduct could potentially lead to dismissal.

Whistleblower Act

The Public Interest Disclosure Act 1998 (PIDA, or the so-called 'whistleblower act') protects an informant in circumstances where a criminal offence is being committed, a miscarriage of justice is involved, or health and safety are at risk; and where information is being deliberately concealed and the whistleblower has either made an effort to inform a superior which proved futile, or has good reason to believe that doing so will be dangerous or futile or result in a cover-up.

If a member of staff became aware that the senior leadership was deliberately concealing bullying from the parents of victims, dismissal for revealing this in the proper way might well attract the protection of the PIDA and expose the school to a claim of unfair dismissal and worse.

Governors sometimes believe their proceedings are confidential. The general principle under the Freedom of Information Act is that where a public authority holds information it must be divulged on request. Maintained schools, and schools and colleges established by statute are deemed to be public authorities. So in general the act covers governors' minutes.

However, under the Data Protection Act governors must remove any reference to individuals; and information that might prejudice an investigation or hearing should certainly be kept confidential until the matter is concluded.

Do students and staff have a right to privacy at school/college? This is very complex. Data protection inhibits data held on individuals (including CCTV footage) from being passed on (though this can be over-ridden under the Freedom of Information Act). Confidentiality and privacy, however, are different.

Recent judgements indicate that the two questions are: whether there is a reasonable expectation of privacy and whether the action invades the private realm (for example, exposing an individual's drug rehabilitation).

Schools and colleges are not part of private life but gossip outside about young people's medical problems, say, may be a breach where that information has been obtained in the course of employment. The law is only likely to intervene where there is a likelihood of the wider publication of the information. The school may judge, though, that there are grounds for disciplinary action.

Welfare of pupils

And children confiding in staff? There is an overriding statutory duty for employees to act with regard to the interests of the welfare of pupils. If the nominated teacher for child protection has decided, after taking advice, that the confidence of a child who is 'Gillick competent' (that is, deemed capable of making his/her own choices) should not be shared with a parent, it is likely to be unacceptable for another member of staff then to tell the parent.

Any duty of confidentiality to a young person can be overridden if it is in the public interest, for instance, if it is concealing sexual acts with a minor. (This is why any policy must make it clear that staff should not promise absolute confidentiality.)

However, this is different from a member of staff "telling her parents because parents ought to know", when senior staff on good advice have decided it is in the young person's interest to withhold information a possibly abusive parent. There, disciplinary action would be justified. Complex? Yes. As always, make sure staff have clear guidelines and you have good legal advice before you act.