What should an employer do when an allegation of reportable conduct may also constitute a criminal offence, but informing the employee could compromise a police investigation?
Consider a school that receives an allegation that a teacher has sexually assaulted a student.
The school recognises that the allegation must be reported to police. However, the teacher remains at work, potentially with access to the student and other children.
The principal considers suspending the teacher immediately and explaining the allegation. But doing so could alert the teacher before police have had an opportunity to secure evidence, interview witnesses or conduct their own inquiries.
If the principal says nothing and allows the teacher to remain in the classroom, there may be continuing risks to children.
How should the school respond?
The NSW Office of the Children's Guardian (OCG) addresses this dilemma in its guidance on reportable conduct investigations. The guidance makes clear that employers need to consider the risk of prejudicing a criminal investigation as well as their responsibilities for protecting children.
Should the employee be informed immediately?
Generally, where police are investigating criminal allegations, the OCG advises employers not to take any action that could alert the employee, directly or indirectly, until police provide clearance.
Fact Sheet 4, Planning and conducting an investigation, expressly addresses the timing of disclosure to an employee.
The OCG explains that informing an employee too early can prejudice an investigation, particularly before relevant evidence has been obtained.
In some circumstances, even informing the employee that an allegation exists may compromise the investigation.
This is particularly significant where police have not yet interviewed the employee, secured electronic records or spoken to relevant witnesses.
An employer should therefore consult police before advising the employee of the allegations or taking action that may alert them to the investigation.
The OCG recognises that the timing of disclosure can also affect an employee's wellbeing. However, the need to treat an employee fairly does not necessarily require immediate disclosure where there is a genuine risk of prejudicing an investigation.
What does the legislation say?
Section 57(6) of the Children's Guardian Act 2019 (NSW) permits the head of a relevant entity to disclose certain information to an employee about whom a reportable allegation has been made.
However, section 57(7) restricts that disclosure where the head of the entity reasonably believes that disclosure would:
Put a person's health or safety at serious risk.
Put a complainant, reporter or another person at risk of harassment or intimidation.
Prejudice an investigation or inquiry.
These provisions are particularly relevant where a criminal investigation is underway.
The OCG's Fact Sheet 4 explains that the risk must be assessed before the employee is informed of the allegation.
It also cautions against relying on speculative risks. The mere possibility that someone might be harassed or intimidated does not, by itself, establish a sufficient basis to withhold information.
The employer needs to consider the actual circumstances and identify why disclosure could create one of the risks recognised by the legislation.
What if suspending the employee alerts them to the allegation?
This is perhaps the most difficult practical issue.
An employer may decide that an employee should be removed from child-facing duties while serious allegations are investigated.
However, the act of suspending the employee may itself alert them to the existence of an allegation, even if the employer provides no details.
The OCG addresses this directly in Fact Sheet 3, Risk management following a reportable allegation.
It warns that taking risk management action without providing detailed reasons may still alert the employee, potentially resulting in evidence being destroyed or witnesses being influenced before police have had an opportunity to act.
For this reason, the OCG advises employers to consult police before taking risk management action, unless there is an imminent serious risk to a child.
This means that an employer should not assume that it can avoid compromising a police investigation simply by suspending the employee without providing an explanation.
Even a suspension described as an administrative measure could raise questions for the employee and alert them to the possibility of an investigation.
The employer should discuss the proposed action with police, including whether the employee can be told anything about the allegations, whether police involvement can be disclosed and whether alternative risk management arrangements are available.
What if the employee remains in the workplace?
The OCG is equally clear that an employer remains responsible for assessing and managing risks to children.
Fact Sheet 3 identifies a range of considerations relevant to deciding whether an employee should remain in their current duties, be transferred or be suspended.
These include the seriousness of the allegations, the vulnerability of children, the nature of the employee's duties, the availability of supervision, relevant disciplinary history and risks to the investigation itself.
The OCG generally recommends adopting the least interventionist measure capable of managing the identified risks.
For example, where appropriate, increased supervision may sufficiently manage a risk without removing the employee from the workplace.
In other circumstances, the seriousness of the allegation or the nature of the employee's contact with children may require more substantial restrictions.
The important point is that the employer should assess the risks in the particular circumstances rather than automatically suspend every employee who becomes the subject of a reportable allegation.
Where police are involved, proposed risk management arrangements should be discussed with the investigating officer.
If the employer considers that the arrangements proposed or accepted by police are insufficient to protect children, the OCG advises raising those concerns with the officer in charge, their supervisor and, if necessary, the OCG.
What should the employer do when the allegation is first received?
The OCG's guidance provides a basis for the following approach.
1. Assess and address any immediate danger
Where a child faces an immediate risk of serious harm, the organisation should act promptly to protect them.
Fact Sheet 4 recognises that this may require immediate steps to prevent contact between the employee and the child or other children.
The employer should document the reasons for any immediate protective action.
The guidance also recognises the importance of securing evidence that might otherwise be lost, including CCTV footage, electronic messages and workplace records.
2. Report the allegations to police promptly
Where an allegation involves suspected criminal conduct, the employer should make a prompt report to police.
The OCG advises that, after addressing any immediate significant risk to children or the investigation, reporting to police should be the first step.
The employer should provide police with the relevant information, including details of the allegation, the people involved and the existence of potentially relevant evidence.
Once police have been notified, the employer should establish whether police intend to conduct inquiries or an investigation before undertaking investigative steps of its own.
3. Specifically ask police whether the employee can be informed
This should be an express discussion with the officer in charge.
The employer should establish whether police object to:
Informing the employee that an allegation has been made.
Disclosing the nature or particulars of the allegation.
Informing the employee that police are involved.
Suspending the employee, changing their duties or imposing additional supervision.
Taking other action that may indirectly alert the employee.
Fact Sheet 13 confirms that police may provide guidance on whether the employee can be alerted to the allegations or to police involvement.
The employer should document the advice received, including any restrictions and when those restrictions will be reviewed.
4. Develop a risk management plan
The plan should address risks to the child, other children, the employee, witnesses and the integrity of the investigation.
Depending on the circumstances, measures may include additional supervision, restrictions on contact with particular children, alternative duties or suspension.
The employer should discuss proposed measures with police and record the reasons for the action taken.
If police advise against a proposed measure because it may compromise their investigation, the employer should explore whether other measures can adequately manage the risks.
5. Review the position as the police investigation progresses
The employer should maintain contact with police and regularly reconsider the risk management arrangements.
Fact Sheet 13 recognises that managing risk may require further discussions with police as an investigation progresses.
Where an employer remains concerned about the adequacy of protective arrangements, the OCG provides a process for escalating those concerns.
What about procedural fairness?
An employee who is the subject of a reportable conduct investigation is entitled to a fair process.
That will ordinarily include being informed of the allegations, having a genuine opportunity to respond and having the evidence assessed impartially.
However, procedural fairness does not necessarily require the allegations to be disclosed immediately upon receipt.
The OCG's Fact Sheet 4 expressly recognises that the timing of disclosure must take account of the risks to the investigation and the people involved.
Where police are investigating, the employer may need to delay putting the allegations to the employee.
Once police provide clearance and the employer's investigation can proceed, the employee should ordinarily be given sufficient particulars of the allegations and a proper opportunity to respond before adverse findings are made.
An employer should also distinguish between temporary risk management measures and disciplinary findings.
Suspension or restrictions imposed to manage risk do not establish that the alleged conduct occurred.
The OCG's guidance emphasises that such measures should not predetermine the investigation's outcome.
The importance of recording decisions
A reportable conduct matter involving police can require difficult decisions with incomplete information.
The employer may have to decide whether an employee can remain at work, whether particular duties should be restricted and how much information can safely be disclosed.
Those decisions should be supported by a documented risk assessment and appropriate consultation with police.
The records should identify the information available, the risks considered, the police advice received, the reasons for the measures adopted and any arrangements for review.
This is particularly important where an employer decides not to inform an employee immediately or allows an employee to continue working with restrictions.
The OCG's guidance requires the employer's initial risk assessment and management action to be reported as part of the notification process.
Final thoughts
One of the most challenging aspects of a reportable conduct matter involving suspected criminal conduct is deciding what to tell the employee, and when.
Informing the employee prematurely may alert them before police have secured evidence or interviewed witnesses. Even an unexplained suspension may have that effect.
At the same time, the organisation remains responsible for managing risks to children and others.
The OCG's guidance provides a clear approach: address immediate safety concerns, report suspected criminal conduct promptly, consult police before taking action that could alert the employee, and adopt risk management measures appropriate to the circumstances.
These decisions should be documented and regularly reviewed.
The timing of disclosure to the employee should be carefully considered as part of the organisation's overall response, with appropriate regard to both the integrity of the police investigation and the employee's entitlement to procedural fairness.
Primary references
NSW Office of the Children's Guardian, Fact Sheet 3 – Risk management following a reportable allegation, revised October 2025, particularly pages 2–3.
NSW Office of the Children's Guardian, Fact Sheet 4 – Planning and conducting an investigation, revised October 2025, particularly pages 2, 4–5.
NSW Office of the Children's Guardian, Fact Sheet 13 – Reportable conduct investigations and the NSW Police Force, October 2025, particularly pages 2–4.
Children's Guardian Act 2019 (NSW), sections 33 and 57(6)–(7).