Employment update: The Vetting and Barring Scheme

13 October 2009

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It has been difficult to avoid the recent media frenzy around the Vetting and Barring Scheme, which launched on 12 October 2009. Official estimates state that over 11 million people will be affected by it and a large proportion of these will be employees. Read on to find out exactly what impact this will have on your business.

The Scheme's purpose is to prevent unsuitable individuals from being able to work with children and vulnerable adults, or have contact with them, directly or indirectly, in the workplace.

It requires all individuals who wish to work with such groups to be registered on a database administered by the Criminal Records Bureau (CRB).

Employers will be required to check the register to ensure an individual is cleared to carry out such work, whether voluntary or paid, before putting them in post. A new public body, the Independent Safeguarding Authority (ISA) will decide who is to be placed on the register as cleared to work with such groups and who is to be barred.

The current system of obtaining standard or enhanced CRB checks for certain posts will continue and the Scheme will exist alongside and in addition to it. The Scheme is designed to complement CRB checks and to provide additional safeguards.

What's new?

Unlike CRB checks which contain details of convictions, the ISA will consider a wider range of information when deciding whether an individual is to be barred from working with children or vulnerable adults.

This information will cover not just convictions but also cautions and what is referred to as "soft intelligence" such as general police information, concerns reported by local authorities, professional bodies, members of the public and employers. It is this aspect of the Scheme which is causing some disquiet in the media leading to accusations that the ISA can bar individuals based on unproven allegations and subjective opinion.

How will this affect employers?

All those working or volunteering to work in a "regulated activity" must be registered and it will be illegal to employ or take on such individuals to do such work if they are not. As an employer, you will be required to check registration as part of your recruitment procedures for all incoming staff and for existing staff as the Scheme is rolled out.

"Regulated activity" is widely defined and includes anyone working in an activity or place which involves contact with children or vulnerable adults. It will cover for example, those working in hospitals, clinics, nurseries, schools, care homes and community care.

There is a further tier known as "controlled activities". This is more limited in scope and covers work which gives the opportunity for contact with children or vulnerable adults or access to their records. This will cover for example, ancillary staff in the health, education and care sectors. Individuals barred from the register can sometimes work in a "controlled activity" providing tough safeguards are in place, such as robust supervision. This applies in England. A tougher line is being taken in Wales where no distinction is being made between "regulated" and "controlled" activities and it will be illegal to engage a barred individual to carry out a "controlled activity".

All employers will be expected to know about the Scheme and to comply with its obligations. They will face tough penalties if they fail in their responsibilities which can include a prison sentence and fine.

Those responsibilities also include the requirement for employers carrying out "regulated activities" to refer to the ISA any information about individuals who may pose a risk to children or vulnerable adults.

When will these changes take effect?

The Scheme goes live and begins a five year phasing in process from 12 October 2009. From this date, it is the employer's duty to refer information to the ISA. The three current barring lists (known as POCA, POVA and List 99) will be replaced by two new barred lists maintained by the ISA and checks of these new lists can be made as part of an enhanced CRB check.

If you are used to applying for a standard CRB check on those working with children or vulnerable adults, you'll need to apply for enhanced checks from this date.

What issues do employers need to address now?

The Scheme will result in various headaches for employers and will require new ways of working. It will serve all employers well to anticipate problems which are bound to arise and to plan in advance. As a starting point you will need to look at:

Who will fund the £64 cost to the employee to register with the ISA? This is an additional amount to the enhanced CRB check, which is currently £39. Volunteers will not be required to pay the registration cost.
Who in your organisation will be responsible for identifying which roles are "regulated" and "controlled" activities and what is the process for doing this?
Are your recruitment, transfer and promotion procedures up to date and Scheme compliant? How should the employer handle the recruitment process if an employee's application for registration is delayed?
Continued employment for new recruits will be conditional upon ongoing registration. How will this be carried over to existing staff?
As the Scheme extends to existing staff, how will your organisation deal with notifications from the ISA that they are considering barring a current employee subject to his/her representations? Is that employee suspended or transferred and, if so, on what terms?
For those who carry out "controlled activities" in England what safeguards will need to be put in place if individuals are barred and how will these be monitored to ensure they are robust?
For organisations which depend on volunteers, what impact is this likely to have and how will you plan for this?

About the author

This article was prepared by the FPB's legal advisers, Mace & Jones Solicitors and is a shortened version of an article which originally appeared on their website, to read the full article click here. For more information on Mace & Jones visit www.maceandjones.co.uk

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