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Suhan Rajkumar
Associate
The basics: An explanation of what “significant” means in relation to an incident has been included, as this term is used frequently throughout the guidance. It means something “significant in the context of your charity, taking account of its staff, operations, finances and/or reputation.”
There is also a new sentence in the “Who should report” section to the effect that if a charity does not report an incident and the Commission later becomes involved, the trustees will then need to be able to explain why it was not reported at the time.
Trustee oversight: Although we don’t understand the position to have changed, there is increased emphasis on trustees (rather than only employees) being made expressly aware of matters that could constitute SIs and deciding whether a report should be made, e.g.
- It is the responsibility of the charity trustees to decide whether an incident is significant and should be reported.
- The trustees may delegate responsibility for deciding which incidents should be reported to others within the charity, such as employees. However decisions made by others in the charity should be reported back to trustees (particularly where incidents were ‘borderline’ and making a report was considered but it was decided not to make one).
Safeguarding: There is a much more detailed section on safeguarding incidents, which has been moved higher up in the guidance and includes the Commission’s broader definition of safeguarding. Helpfully, the guidance says that a report is generally not required if there is an incident involving abuse of a beneficiary/staff member etc, but neither the abuse nor alleged abuser were connected to the charity’s activities in any way (unless the charity did not handle the matter appropriately and caused additional harm). This appears relevant where a staff member may be suffering harm in their personal life.
The guidance is clear that SIs may have to be reported in relation to workplace matters, but says “this does not mean that the Commission expects charities to report every internal staffing incident – charities need to make a judgement call about which incidents either individually, or as a collection, are serious in the context of the charity.”
There is an updated version of the examples table, with some completely new examples of what to report or not report. In relation to workplace matters, examples of incidents that should be reported are:
- The Chief Executive of the charity has been suspended pending the outcome of an investigation into their alleged sexual harassment of a fellow member of staff;
- An allegation that a trustee, staff member or volunteer has been sexually assaulted by another trustee, staff member or volunteer;
- An internal investigation has established that there is a widespread culture of bullying within the charity.
Examples of some things that may not need to be reported are:
- A staff member who is not in a senior position or position of specific responsibility (e.g. head of safeguarding) has bullied or harassed a fellow staff member. There is no indication of a widespread culture of bullying or harassment within the charity and the incident is dealt with by minor disciplinary action (for example, the staff member responsible has not been suspended or dismissed).
- A staff member who is not in a senior position or position of specific responsibility is dismissed for marrying a member of the community in which the charity is working, in breach of the charity’s code of conduct but not in breach of local laws.
- Although these examples are of some assistance, they may still be difficult to apply in practice e.g. how to reconcile with a requirement to report ‘promptly’ if an investigation is required in order to assess the level of seriousness?
Criminal reporting: The section on reporting criminal activity has been expanded and does contemplate that in ‘exceptional circumstances’ there may be examples of crimes that do not need to be reported. This includes “where the crime and the impact on the charity are minor for example one-off theft of a very small amount of money”.
- There is a separate 2 page document on reporting crimes and potential crimes to the police in the UK and overseas, see here: This is useful and, especially in relation to overseas incidents, reflects the concerns of some overseas aid charities regarding victim consent, cultural sensitivities, risk to victims and perpetrators and the need to risk assess. It also outlines when charities should make a report to the National Crime Agency.
- The position remains slightly problematic in relation to reporting UK offences to the UK police, as the guidance essentially states that where a criminal offence has actually or potentially been committed, the police should be informed. This does not engage with the ‘threshold’ question (e.g. whether it is necessary to report minor incidents that could technically amount to criminality to the police, and/or whether or not a report to police should always trigger a report to the Commission, particularly where the Commission has otherwise indicated that it may not be reportable, such as where the incident involves junior staff and is not indicative of a widespread issue).
Relationships with partners: Further specific guidance is promised on reporting safeguarding incidents in respect of partners. However, for now there is some new guidance about the Commission’s definition of a ‘partner’ and some new examples in the examples table. A charity should make a report if there has been an incident involving a partner “which materially affects your charity, its staff, operations, finances and/or reputation, such that it is serious enough to be reported.”
Under the “How to report” heading, there is a new paragraph about incidents occurring in more than one charity, including in federated structures, which explains that the incident should be reported by each of the charities involved. However, it also says that charities can agree for one of them to make the report on behalf of all of them if it makes it clear that it has the authority to do so and tells the Commission about the action that each of the charities are taking in response to the incident.
Bulk reporting: The wording here has been tweaked to suggest prior agreement is required from the Commission before adopting periodic/multiple reporting, which was not previously included. Charities which have previously been reporting in bulk, or consider that this may be appropriate, should reach out to the Commission in light of this.
Data protection/confidentiality: The data protection/confidentiality section has changed and seems a little less robust – it now says “the Commission often considers that sharing information is necessary in order to further its statutory functions and objectives and, in some cases, the Commission is required to share information by law. The Commission does not therefore routinely guarantee information provided will be kept confidential.”
Method of reporting: The associated press release also foreshadows a potential new digital tool for lodging serious incident reports and some checklists to sit alongside the guidance.
Whistleblowing and Duties of Auditors: These sections have been de-merged, with links to recent guidance under both headings.
The link to the new guidance is here.
Given the continued regulatory focus, all charity trustees should review the updated guidance and consider their reporting procedures.
Please contact BWB if you wish to discuss any implications of this guidance with you in more detail.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of November 7, 2018.