Your school isn't required by legislation or statutory guidance to conduct section 128 checks.
However, we recommend that the school conducts this check on governors because a section 128 direction prohibits someone from serving as a maintained school governor. So you'll be making sure that no one disqualified is sitting on the governing board.
This might feel like additional bother given that it's not a requirement, but section 2 below explains what these checks look for, and why they're important.
This is set out in paragraph 126 of KCSIE.
What is it?
A section 128 check identifies people who are subject to a section 128 direction.
People with a section 128 direction can't:
Hold a management position in an academy, free school or independent school (as an employee)
Be an academy or free school trustee or member
Be a governor on any academy or free school board that has delegated responsibilities
Be a governor or member of the proprietor body of an independent school
Sit on the governing board of a maintained school
This is set out in paragraphs 124 and 126 of KCSIE.
When is a section 128 direction issued?
A section 128 direction can be issued on specific grounds where the type of conviction, caution, or conduct suggests that the person is unsuitable for the management of a school.
These grounds include:
Conviction of an offence under military disciplinary proceedings
Being found not guilty of an offence by reason of insanity
Conduct found to be in breach of professional standards by a professional body
Section 128 directions may also be issued if a person has engaged in conduct that is aimed at undermining:
Rule of law
Mutual respect and tolerance of those with different faiths and beliefs
This (and the full list of grounds) is set out in regulation 2 of the Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014.
Why are these checks important?
Section 128 checks complement DBS checks by looking at the parts of someone's history that may not necessarily be criminal, but would still be worrying.
Someone who undermines mutual respect for those of different faiths may not be charged with a hate crime, but you still wouldn't want them associated with your school
An accountant who has breached the code of ethics set out by their professional body by using confidential client information for personal gain hasn't necessarily committed a crime, but you probably wouldn't want them overseeing your school's accounts
You protect your school or trust's best interests by making sure you have a full picture of someone's suitability.
How to conduct a check
You need to know who needs a check, but you won't carry out the check yourself.
School staff will need to do this because it requires either:
Getting a DBS check with barred list information
Using the DBS update service
Using the Teacher Regulation agency to conduct the check for people who don't require a DBS with barred list