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New Garda Vetting Procedures

09 August, 2013

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (the “Act”) was signed into law by the President of Ireland on 26 December, 2012. It is anticipated that the Act will come into force later this year.


The National Vetting Bureau created under this legislation will replace the current Garda Central Vetting Unit.


1. Who does the Act apply to?


The Act applies to every ‘relevant organisation’. A relevant organisation is any person (including a body corporate or an unincorporated body of persons) and any employment agency, which provides employment to workers in the childcare and vulnerable sectors.
A child is defined as someone under 18 years. A vulnerable person is defined as someone suffering from a disorder of the mind, an intellectual disability, a physical impairment or has a physical disability.
The Act does not apply to any work or activity undertaken in the course of a family relationship or to persons who assist occasionally or on a voluntary basis in certain activities or events. This includes voluntary work in schools, sporting or community related activities. A noteworthy provision is that the vetting requirements apply where assistance includes coaching, mentoring, counselling teaching or training of children or vulnerable persons on an ongoing basis. It remains to be seen as to what extent a voluntary worker will require to be vetted in this regard.


2. What is new in the Act?


The Act introduces compulsory vetting and disclosure procedures for persons intending to work with children or vulnerable persons. Prior to the enactment of the legislation, persons applying for positions in childcare or with the elderly were vetted on a non-statutory basis in the absence of clearly defined vetting procedures. While vetting is already mandatory in specific circumstances under legislation such as the Child Care Act 1991, the Child Care Regulations 2006 and the Teaching Council Act 2001, vetting procedures are not clearly defined in earlier legislation and there is no legal basis for the Gardaí to disclose “specified information” i.e. information about a person gathered as a result of an investigation but where there has been no conviction for a criminal offence.
The Act sets out procedures for organisations to follow when making a vetting application to the Bureau and outlines the statutory rights of any worker being vetted.
Significantly, criminal sanctions for failing to properly vet these employees arise for employers, thereby escalating the importance of a thorough vetting process. Sanctions for failure to properly vet employees include fines of up to €10,000 and/or imprisonment for a term of up to 5 years. It will be a defence for an employer to show that he or she did not know or could not reasonably be expected to know, that the work for which a person was engaged constituted relevant work or activity.


3. Taking those first steps towards compliance


Once the Commencement Order has been signed by the Minister bringing the Act into force, any relevant organisation which has not already registered with the National Vetting Bureau must apply for registration. The organisation must nominate a “liaison person” who will be responsible for co-ordinating the organisation’s vetting applications and s/he will be subject to prior vetting.  The Bureau is empowered to refuse registration of a person into this position if it considers them unsuitable as a result of the vetting process.
Significantly, the organisation will be obliged to retrospectively vet any current employees who have not previously been the subject of a vetting application.


4. The Vetting Application


Following the receipt of an application for a vetting disclosure by a liaison person, the Bureau will undertake an examination of its own databases and Garda Síochána records to establish whether it holds any criminal records or any “specified information” relating to the applicant.
Specified information is information ‘concerning a finding or allegation of harm to, or neglect of, a child or vulnerable person’ that gives rise to a bona fide concern that a person may harm a child or vulnerable person. Specified information received by the Bureau is provided by specified organisations set out in Schedule 2 of the Act such as the HSE, HIQA, the Teaching Council, the Medical Council and the Dental Council.  This information is narrowly defined and the information must arise following an investigation, inquiry or regulatory process for specified organisations only.
Scheduled organisations are obliged to notify the Bureau of such information, its concerns and provide reasons for same as soon as a bona fide concern is raised. Failure to do so is an offence carrying a maximum penalty of €10,000 and/or imprisonment for a term of up to 5 years.
The Bureau will release a vetting disclosure upon completion of all necessary enquiries and procedures as required. It may state that there is no criminal record or specified information relating to the applicant.  Any person who will have a vetting disclosure released in relation to them will be notified of the referral. The person will be provided with a summary of the information and will be informed of their right to make written submissions in relation to the information.
Where the employer receives a vetting disclosure containing details of criminal records or specified information it must also provide a copy of the disclosure to the vetting subject. It may consider and take into account the information disclosed in assessing the suitability of the person to work in that particular role without fear of litigation. The employer may not disclose the information otherwise than in accordance with the Act.


5. The National Vetting Bureau Database


Under the Act, the National Vetting Bureau is obliged to establish and maintain a database consisting of:
• a register of relevant organisations;
• a register of specified information; and
•  a register of vetted persons.
This database of information is in addition to the records of criminal convictions which the Garda Síochána already holds.


6. The UK Experience


The equivalent of the National Vetting Bureau in the UK is the Disclosure and Barring Service (DBS) which became operational on 1 December 2012. There has been widespread criticism of vetting procedures in the UK recently, in particular relating to foreign workers in the healthcare and childcare sectors. This is not surprising and indeed presents concerns for employers as the DBS cannot access criminal records held overseas and can only provide a vetting of persons for the timeframe since they arrived to the UK. In a small number of cases, overseas criminal records are also held on the Police National Computer (PNC) and these will be revealed as part of a DBS check. In order to thoroughly vet a foreign employee, employers must also request a Certificate of Good Conduct or an overseas criminal record check, from the person. These documents are issued by the embassy of the countries of prior residence of the worker. An inherent risk in this process is that a prospective employee may not always disclose all of the countries they are have been in prior to applying for a position in the UK.
The new Irish Act is silent as to the ambit of the National Vetting Bureau’s cross-border powers to look at convictions and specified information outside of the state. It remains to be seen how far the Bureau will be empowered to look at a person’s history outside the state and if the same situation as the UK with regard to foreign employees will exist.
A recent audit of 217 home care centres in England by the Care Quality Commission which regulates and inspects health and social care services in the UK found that a large number of people with criminal records were working unsupervised as carers in peoples’ homes. It emerged that the workers had not been risk assessed following the vetting procedures in order to judge their suitability to work in a particular role with vulnerable persons.
At the opposite end of the spectrum, there is currently an argument being made in the UK that the current vetting system is a breach of Article 8 of the Convention of Human Rights (right to privacy). A recent Court of Appeal decision, [2013] EWCA Civ 25, in response to three sets of proceedings enjoined to test the legality of spent convictions appearing on vetting results, held that the law requiring people to disclose all previous convictions and cautions to employers was a breach of Article 8 of the Convention of Human Rights. It found that the current system is disproportionate in dealing with historic and minor spent convictions and cautions. A spent conviction is a conviction which is no longer taken into account for legal purposes after a period of time has elapsed. The Home Office has sought leave of the Supreme Court to appeal this decision. Pending a decision on permission, the Court of Appeal’s judgement has been temporarily suspended and the Home Office will continue to show all convictions and cautions. It will be interesting to observe if /when a similar action is initiated in the Irish Courts following the introduction of the National Vetting Bureau.


7. Irish response to UK Court of Appeal decision, [2013] EWCA Civ 25


Elements of the Act relating to the disclosure of convictions are currently under review having regard to the judgment of the UK Court of Appeal. With regard to the principles identified by the Court in relation to the application of Article 8 of the Convention of Human Rights, the Department of Justice and Equality is currently engaged in ongoing consultation with the Office of the Attorney General to determine if there are any implications for the legislation which would require to be addressed in advance of commencement.


Tips for Employers in dealing with the new vetting obligations


In anticipation of the Act's impending commencement, employers are encouraged to review their recruitment procedures and documents as follows:


1. Categorise roles that will require workers to be vetted on a compulsory basis.

2. Be proactive in seeking to register your organisation with the Bureau. A relevant organisation that, immediately before the commencement of the Act is registered with the Garda Central Vetting Unit will be deemed to be registered with the Bureau as a relevant organisation.http://www.garda.ie/FAQ/Default.aspx?FAQCategory=36#FAQ2724

3. Appoint a “liaison person” within the organisation and proceed to register this person with the Bureau. A person who, immediately before the commencement of the Act, is registered with the Garda Central Vetting Unit will be deemed to be registered with the Bureau as a liaison person.

4. Ensure that all relevant job advertisements include a reference to a vetting process for all job applicants with the National Vetting Bureau.

5. Mention the vetting process at Interview Stage.

6. Ask candidates if they have any previous convictions or a criminal record in other jurisdictions at interview stage. As discussed at section 6, this is of particular relevance in the recruitment of non-nationals as the Act is silent as to the ambit of the Bureau’s cross-border powers. According to the Garda website, the current Garda Central Vetting Unit’s disclosure policy provides employers with details of “all convictions and/or prosecutions, successful or not, pending or completed, in the State or elsewhere as the case may be”. It is prudent that employers are proactive in making these enquiries directly with the workers. From experience  of dealing with nursing homes in particular, where a large proportion of the workforce are non-national, employers should take steps to ensure that a thorough picture of an employee’s past is exposed during the recruitment process.

7. Put in place strict risk assessment procedures for assessing a potential employee’s suitability for a particular position following receipt of vetting disclosures from the Bureau.

8. Seek information from the National Vetting Bureau in relation to the timeframe for disclosure to ensure visibility on recruitment processes.

9. Ensure that all employee contracts and staff handbooks reflect the provisions of the Act and in particular, contracts should be amended to advise that an employee’s position may be subject to future vetting by their employer and that their continued employment may be affected by information disclosed as part of future vetting applications.

10. All job applicants for relevant roles should be notified that their application is subject to vetting by the National Vetting Bureau.

This article is written by Lucy Alley, Associate, Crowley Solicitors

 

For the leisure sector, Garda Vetting is processed only through the offices of ILAM (The Institute of Leisure & Amenity Management Ireland Ltd).

As an ILAM member you are entitled to this service free of charge. If you wish to avail of this free service, as a first step please email us - accounts@ilam.ie. 

We have detailed guidelines on how to ensure that the form is properly completed.  We also provide a clear step by step process which is to be followed when submitting applications to us.

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