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OSCR, the Scottish Charity Regulator, has recently reiterated their guidance in relation to the safeguarding of individuals and the reporting of “notifiable events”. The guidance follows a series of high profile reports involving third sector organisations triggered by the allegation that Oxfam staff paid survivors of the Haitian earthquake for sex. Whilst Oxfam stated that they had launched a full investigation in to the incident, the Charity Commission for England and Wales has stated that it was not given full details about the use of prostitutes by aid workers.

Following on from the Oxfam scandal the Sunday Times reported new claims indicating that more than 120 workers from UK charities had been accused of sexual abuse in the past year. This provided the impetus for OSCR to reiterate to charities the importance of reporting significant events when they occur. The two key points OSCR wished to emphasise were:
1. safeguarding i.e. keeping vulnerable beneficiaries, volunteers and staff safe; and
2. the definition of notifiable events.

Safeguarding

OSCR require that charities have the appropriate policies in place to ensure that every relevant individual is kept safe. They emphasise that ultimately it will be the charity trustees who are accountable so it is within their best interests to put these policies in place. OSCR provide guidelines that charity trustees can take to safeguard employee, volunteers and other individuals including:
• Assessing safeguarding risks and addressing them where necessary
• Being confident that the steps put in place are relevant to the size and work of the charity
• Making sure the charity’s policies and procedures are effectively applied in practice throughout the organisation
• Periodically reviewing safeguarding policies and procedures
• Encouraging a safe environment so that volunteers, staff and beneficiaries feel that they can speak up when they think something is going wrong
• Being decisive with any action required to be taken, and not being complacent
• Being transparent when incidents do occur, and learning from them
• Ensuring that serious incidents are reported to OSCR and any other relevant bodies

Notifiable Events

“Notifiable events” occur when something serious has happened or could happen to a charity. OSCR ask that notifiable events are reported to them as soon as possible to mitigate the effects of serious issues which can affect the charity sector as a whole, such as those at Oxfam. According to OSCR a notifiable event could be:
• Fraud and theft
• Significant financial loss
• Incidents of abuse or mistreatment of vulnerable beneficiaries
• When a charity has been subject to a criminal investigation or an investigation by another regulator or agency
• When significant sums of money or other property have been donated to the charity from an unknown or unverified source
• Suspicions that the charity and/or its assets are being used to fund criminal activity
• Charity trustees acting improperly or whilst disqualified.

It is clear that the conduct of the Charity’s employees may amount to a notifiable event. The OSCR recommendations serve as useful reminders to third sector organisations that it is not sufficient to be reactive; instead, as OSCR states, policies need to be in place beforehand so individuals are aware of the steps required to be taken if an incident does occur. Whilst not a strict obligation it would also be advisable for charities to put in place a whistleblowing policy to ensure anyone affected has a protected outlet to report or expose any wrongdoing. The purpose is to encourage beneficiaries, staff or volunteers to report any concerns about wrongdoing or dangers internally through the proper channels, and as early as possible, so that they can be investigated, rather than keeping them to themselves. Doing so also promotes a culture where concerns are reported at an early stage and may make it easier for charity trustees to address any concerns raised at the earliest opportunity. 

The increased scrutiny of third sector employers following the Oxfam revelations reinforces the need for policies to be in place and to be enforced in order to seek to prevent wrongdoing or even criminal acts occurring unchecked. Whilst compliance with the requirements of the charity regulators and avoidance of reputational damage are crucial issues, third sector organisations should also always bear in mind that general employment law still applies to their employees and any disciplinary process should always be carried out carefully avoiding “knee jerk” reactions which could give rise to legal liabilities such as unfair dismissal.

If you have any queries about any of the issues raised above please do not hesitate to contact a member of the Stronachs Employment Team.

Ross Michie, Trainee Solicitor

Chambers UK 2018

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