The Department for Education (DfE) has released new guidance on how it intends to ban “unsuitable individuals” from managing schools.

The guidance outlines how education secretary Gavin Williamson will exercise his powers under section 128 of the Education and Skills Act 2008.

And writing in Tes today, schools minister Baroness Berridge said the government was determined to root out “bad apples” from school leadership.

Section 128 gives the secretary of state power to bar someone from a management position in a private school, an academy or a free school, and from being a governor in a maintained school.

The DfE has issued 22 barring orders including four this year.

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The new guidance is non-statutory and intended to help decision makers decide whether to issue a ban under section 128.

Here are some of its key points.

Who section 128 is for and how it works

The DfE has said there is no exhaustive list of management positions in private schools, academies and free schools that can be subject to section 128 directions, but it gives, as examples, headteachers, principals, deputy/assistant heads, governors, trustees, chief financial officers and chief operating officers.

It also warns that the offence or conduct that triggers a section 128 directive does not need to happen at the school.

The guidance says: “It may take place or have taken place outside of this context if the effect of the conduct, offence, finding or caution is such that trust or confidence cannot be held in the individual’s ability or propriety to manage an independent school.”

In order to issue a section 128 direction, according to 2014 regulations, there needs to be what the DfE calls a “two-limb test”.

First, a person needs to have a conviction, a caution or have engaged in “relevant conduct” which could make them unsuitable to be involved in school management.

Second, the secretary of state needs to consider whether this makes them unsuitable to be in a management position.

But what are the grounds that could trigger the direction?

Banning offences

The guidance says that people can be banned for having committed an offence that is relevant to their suitability for leading a school.

It gives examples of sexual offences or dishonesty offences, and these can apply to offences that occurred before the person obtained a management position in a school.

Undermining British values

The guidance says the department could also issue a section 128 direction to an individual if their conduct is found to undermine the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those of different faiths and beliefs.

It says the concept of fundamental British values is built into independent school standards. Proprietors of independent schools are required to ensure that the curriculum does not undermine fundamental British values and to actively promote fundamental British values as part of the spiritual, moral, social and cultural development of pupils.  

Conduct aimed at undermining fundamental British values might take a number of different forms and is not limited only to conduct within the school setting or conduct that occurs during the management of an independent school. 

School leaders who are found to have breached standards

Where conduct is found to be in breach of professional standards, the department will  be able to act only after the appropriate professional body (such as the Institute of Chartered Accountants in England and Wales, the Financial Conduct Authority, the Solicitors Regulation Authority or the Teaching Regulation Agency) has made a formal decision on the conduct of the individual.

Inappropriate conduct does not need to be intentional

Inappropriate conduct, the guidance warns, does not need to be intentional to make an individual unsuitable for a management position.

The guidance reads: “A person might be unsuitable where they have been reckless or did not care what the relevant requirements are, where they have been negligent and, in some circumstances, if they were not aware when they ought to have been.”

The guidance divides inappropriate conduct into three categories:

• General conduct, which includes behaviours such as abuse of power, a breach of equality law or putting pupils at risk of exposure to or influence by extremist actors or radicalisation.
• Financial and governance mismanagement, which includes instances such as serious, deliberate or repeated breaches of the Academies Financial Handbook or failure to report financial irregularities to the chair of the academy trust, to auditors, the Education and Skills Funding Agency or any relevant bodies.

• Risking the health, safety and welfare of pupils and staff, the last section of which includes exposing children or staff to serious harm, bullying, harassing or intimidating staff, or failure to take reasonable steps to ensure that the health and safety of children and staff are adequately maintained.

How the system works

After the education secretary has considered it appropriate to issue a section 128 direction, the DfE will inform the individual that they are prohibited from participating in the management of the school.

The individual has two months from the date of posting to make written representation as to why the direction should be dropped.

After a review of the representation received, the department will inform the individual of its decision and it will also publish it on its website. 

Appeals need to be made within three months.