Vetting and barring scheme: case study

Sue Nickson of Hammonds LLP continues a series of articles on the vetting and barring scheme with a case study. Under the Safeguarding Vulnerable Groups Act 2006, affected employers are required to refer information about individuals whom they believe pose a risk to children and vulnerable adults to the Independent Safeguarding Authority (ISA). 

Case study one - Jane is the HR manager for a residential care home for the elderly. One of the senior carers has told Jane that she saw another carer, Ian, hitting one of the care home residents. Jane immediately suspends Ian and, following an investigation that appears to support the allegation, begins disciplinary proceedings against him. Ian resigns before the disciplinary process can be completed. 

What are Jane's obligations under the vetting and barring scheme?

Since 12 October 2009, organisations in England, Wales and Northern Ireland that are responsible for the control or management of a "regulated activity" (see Vetting and barring scheme: overview in this series for the meaning of regulated activity) have been under an obligation to refer to the ISA pertinent information about an individual working with children or vulnerable adults where they consider that the individual has caused harm or poses a risk of harm. This is to enable the ISA to consider whether or not the individual should be barred from the activity and placed on one or both of the ISA barred lists. There are two ISA barred lists - one that includes details of individuals who are barred from working with children and one that includes details of individuals who are barred from working with vulnerable adults.

The Safeguarding Vulnerable Groups Act 2006 sets out three conditions that must be met for the duty to make a referral to the ISA to be triggered. These are that:

• the individual is undertaking a regulated or controlled activity;
• permission for the individual to engage in regulated or controlled activity (see below) is withdrawn by the organisation (or would have been withdrawn if the individual had not, for example, resigned, retired, been made redundant or transferred to a position that is not regulated or controlled); and
• the organisation thinks that the individual concerned has:
  • automatically been included on one or both of the ISA barred lists or has been included pending his or her making representations as to why he or she should not be included;
  • engaged in "relevant conduct" as set out in the Act (for example conduct that endangers or is likely to endanger a child or vulnerable adult); or
  • satisfied the "harm test" (ie the organisation believes that the individual may harm, cause to be harmed, put at risk of harm or incite another to harm a child or vulnerable adult).

The three elements of the test are satisfied in this case. For the purposes of the vetting and barring scheme, Ian was undertaking a "regulated activity" as set out in the Act. His role as carer was an activity carried out in a care home that is exclusively for vulnerable adults, on a frequent (ie once a month or more) basis, which gave him the opportunity to have contact with vulnerable adults. It is irrelevant whether Ian was undertaking the work on a paid or voluntary basis.

The internal investigation supports the allegation made against Ian. Therefore the care home would have withdrawn permission for him to continue in the regulated activity had he not resigned. This means that the second of the three conditions described above is satisfied. The care home's suspension of Ian does not constitute withdrawal from a regulated activity as it is a neutral act. There was no evidence at the point that he was suspended prior to the investigation that he had engaged in relevant conduct or that the harm test had been satisfied.

Finally, the subsequent investigation established Jane's belief that the relevant conduct had occurred.

Therefore Jane must refer the information concerning the allegation against Ian to the ISA. If Jane fails to refer the relevant information to the ISA the care home could be liable on conviction in a magistrates' court to a fine of up to £5,000.

As part of the investigatory process, and prior to making the referral to the ISA, Jane should establish that the allegations against Ian were not made maliciously. Given that referral to the ISA is likely to have serious adverse consequences for the careers of individuals who are referred, employment tribunals considering unfair dismissal claims arising out of the same circumstances are likely to expect employers to have taken a scrupulous approach to their investigation of allegations of relevant conduct.

The ISA has published guidance on how to make a referral and a referral form (on its website).

Would Jane's obligation to refer information about Ian to the ISA be different if he was a cleaner with contact with the residents at the home, rather than a carer?

No. Cleaning activity in this case is a regulated activity and falls within the scope of the vetting and barring scheme as the 2006 Act covers any activity carried out in a care home on a frequent basis that allows the individual to have contact with vulnerable adults. Cleaning could also fall within the scope of "controlled activity", which is work that does not constitute regulated activity but that provides opportunities for contact with children or vulnerable adults. Employers that provide regulated and/or controlled activities are under a duty to refer to the ISA information about individuals whom they believe have caused harm or pose a risk of harm to children or vulnerable adults.

Would it have been different if Ian had resigned when he was notified about the allegation but before the investigation could be carried out?

If Ian had resigned before the care home had carried out its investigation, it would need to form a view on the available evidence as to whether or not the relevant conduct had taken place. If on balance it believed that it had, it would have to refer the matter to the ISA. If Ian refused to co-operate in an investigation this would be a material factor in establishing that belief.

Case study two - John is the HR manager at a secondary school. The budget includes funding for two posts to be filled in January 2010. One post is for a teacher and one for a server in the school's dining room. What checks must John make under the vetting and barring scheme as part of the recruitment process for these two positions?

Any form of teaching, training or instruction of a child (defined in the 2006 Act as a person who has not reached the age of 18) is a regulated activity for the purposes of the vetting and barring scheme. Therefore the teaching post will come within the remit of the scheme. Since 12 October 2009, organisations that wish to engage an individual in a regulated activity must request an enhanced Criminal Records Bureau (CRB) disclosure, which includes a search of the ISA barred lists. From 12 October standard level disclosure is no longer adequate for posts involving regulated activities with children or vulnerable adults because the new ISA barred lists are not searched at that level. Therefore, John must make an enhanced disclosure request in relation to an individual recruited into the teaching post.

From 26 July 2010, individuals may apply for ISA registration if they are moving into a new role in a regulated activity. Organisations that register an interest in an individual's ISA status will have free online access to this information. This will not obviate the need to carry out an enhanced CRB check because the online check will reveal only if the individual is ISA-registered. It will not reveal whether or not he or she is on a barred list or whether or not he or she has applied for, but been refused, registration. To register an interest in an individual's ISA status the organisation must have a legitimate interest in the individual for employment or volunteering purposes and his or her consent.

From November 2010, it will be mandatory for all new entrants into a regulated activity to be ISA-registered and employers and voluntary organisations that provide regulated activities will have a legal obligation to check that individuals are registered with the ISA before employing them.

Provided that it is performed on a frequent (see above) or intensive (ie on three days or more in a single 30-day period) basis, the position of dining room server will also fall within the scope of a regulated activity. This is because the school is a specified place under the 2006 Act. Any form of work in an establishment that is a specified establishment under the Act, and that provides an opportunity for contact
with children or vulnerable adults, is regulated activity. The position of dining room server will involve contact with children. Therefore, John should carry out the same checks for this position as for the teaching post.

Next week's article will be FAQs on the vetting and barring scheme and will be published on 16 November.

Sue Nickson is Chief Operating Officer, Partner (Employment) and International Head of Human Capital at Hammonds LLP (sue.nickson@hammonds.com).

Further information on Hammonds LLP can be accessed at www.hammonds.com.