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Recruitment and Vetting of Candidates by Employers

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012-2016 requires that all employees employed whether on a temporary, or agency contract, as an intern or on a voluntary basis who provide services to children under 18 or to a “Vulnerable Person” must be vetted by the National Vetting Bureau (formerly Garda Vetting Bureau). This came into force on 29 April 2016. A “Vulnerable Person” is an adult with a mental illness, dementia or intellectual disability or is a person who is suffering from a physical disability to such a degree which restricts the capacity of the person to guard themselves against another person and requires assistance with daily living activities, washing, walking, and eating. This includes hospital and elderly patients.

All persons and organisations providing services to children or Vulnerable Persons must be registered with the National Vetting Bureau. Where the person or organisation was registered with the Garda Vetting Bureau prior to 29 April 2016, this registration transfers over. Existing employees of organisations or persons registered with the National Vetting Bureau prior to 29 April 2016 do not require to be vetted, however, all new employees of organisations or persons from 29 April 2016 onwards must be vetted prior to providing any services to children or Vulnerable Persons. Failure to do so is an offence. The new e-vetting process is completed in a number of weeks.

The candidate who has applied to be vetted should be notified that information regarding  criminal records or a finding or allegation of harm to another person from the Garda Siochana or a regulatory organisation which reasonably gives rise to a bona fide concern that the person may harm, cause a child or Vulnerable Person to be harmed or put at risk may be disclosed to a prospective employer. Where an individual has one conviction only, which was over 7 years previously, and was minor, this will not be disclosed to allow the individual to move on. The candidate can make a submission in response to the National Vetting Bureau’s notification.

In considering whether to disclose the information received about a candidate, the Chief Bureau Officer will not disclose this unless he has a bona fide concern that the individual may harm or incite another person to harm a child or Vulnerable Person, the disclosure is necessary, proportionate and reasonable, takes into account the submission made by the candidate, and fair procedures in making a disclosure to a potential employer. Where this information is disclosed to an employer, the employer must consider carefully the suitability of the candidate and fitness for the role in light of the disclosure of a criminal record or finding or allegation of harm to another person. This will require detailed consideration of the type of role being offered, and the nature and extent of access to children or Vulnerable Persons by the candidate.

Under the regulatory regime in the UK which vets candidates who work with children and Vulnerable Persons, a decision is made by an assessing officer regarding what information should be disclosed to a potential employer. In a recent case, the assessing officer decided  the fact that a candidate had been acquitted of the rape of a 17 year old should be released to a potential employer. The individual who was accused of rape is a taxi driver and former teacher. This individual challenged the lawfulness of this disclosure as a breach of his human rights under Articles 6 and Article 8 of the European Convention on Human Rights. Article 6 gives the presumption of innocence to individuals and Article 8 the right to privacy of individuals. The decision of the assessing officer to disclose this acquittal was upheld by the UK Court of Appeal as reasonable, proportionate, and necessary in the circumstances. The incident was an isolated incident but a very serious one. The officer believed that a correct balance was struck in disclosing the acquittal in order to protect children and Vulnerable Persons and reconciling the rights of the individual who was acquitted. Even though this impacts on the candidate as he may not get employment in a chosen profession, it does not prevent him from gaining employment in another profession to support his family.

 

If you have any comments on this article or would like any further information, please contact Davnet O’ Driscoll at Davnet@amoryssolicitors.com