Vetting and barring scheme: employers' checklist

Sue Nickson of Hammonds LLP concludes a series of articles on the vetting and barring scheme with a checklist to help employers ensure that they comply with the requirements of the scheme. Organisations that are responsible for the control and management of regulated activities and/or controlled activities should review their recruitment practices so that, where necessary, enhanced CRB checks are requested. Procedures will also need to be amended in future to include a check of whether or not individuals who are required to register with the Independent Safeguarding Authority have done so. 

1. Identify groups of employees and/or volunteers who may be affected by the implementation of each phase of the vetting and barring scheme. 

The vetting and barring scheme is being implemented in phases over a number of years. The first phase was implemented on 12 October 2009 and the Government intends to roll the scheme out fully by 31 July 2015. See the implementation timetable in Vetting and barring scheme: overview in this series for more details.

Different implementation stages apply, depending on whether or not the individual in question is undertaking a regulated or a controlled activity (see regulated and controlled activity in the overview), and whether he or she is a new or transferring employee or volunteer into a regulated or controlled activity or an existing employee or volunteer in a regulated or controlled activity. Organisations should identify how and when the scheme will affect different groups of staff and ensure that they update their procedures and put in place the appropriate compliance controls.

2. Update recruitment procedures to ensure that checks carried out on new and transferring employees and volunteers into a regulated activity include a search of the barred lists held by the Independent Safeguarding Authority (ISA).

Since the implementation of the first phase of the vetting and barring scheme it has been an offence for an organisation (including a personnel supplier) to allow a person whom it knows (or has reason to believe) is barred, to engage in a regulated activity, regardless of the frequency of the activity and whether or not the person is paid.

As the offence is punishable on conviction by imprisonment or a fine (or both), employers and voluntary organisations should ensure that, when they recruit an individual to work or volunteer in a regulated activity or transfer an existing employee or volunteer into a regulated activity, they apply for an enhanced Criminal Records Bureau (CRB) disclosure, including a search of the ISA barred lists, as part of their recruitment or transfer process. The barred lists (which are not searchable as part of a standard CRB disclosure request) contain details of individuals who should not be allowed to work with children and/or vulnerable adults.

3. Put in place the necessary procedures to ensure compliance with the duty to refer information to the ISA.

The first implementation phase of the vetting and barring scheme also included the introduction of a statutory duty on employers and the other organisations specified in the Safeguarding Vulnerable Groups Act 2006 to refer to the ISA any relevant information concerning an individual working with children or vulnerable adults in a regulated or controlled activity where that person has caused harm or poses a risk of harm to children and/or vulnerable adults.

Failure to provide information to the ISA is punishable on conviction in a magistrates' court by a fine of up to £5,000. Therefore, employers and the other affected organisations should ensure that they have adequate procedures in place so that, when the duty to refer is triggered, it is carried out in a timely and consistent manner. The referral procedure should be included in the disciplinary procedure or a reference made in the disciplinary procedure to a separate procedure. (See Vetting and barring scheme: case study in this series for details of the circumstances in which the duty to refer is triggered.)

As a minimum, the relevant procedure should specify how the duty to refer is triggered and the designated person to whom employees should communicate their concerns (with an alternative designated person in the event of a conflict of duties). The procedure should also make clear with whom the responsibility for referral rests. Employers should emphasise that information given to them will be treated (as far as possible and subject to legal requirements) as strictly confidential, and that individuals who make a disclosure in good faith will not be penalised, even if the disclosure is found, on further investigation, to be factually unsound.

4. Prior to April 2010, update recruitment procedures to ensure that checks carried out on new and transferring employees and volunteers into a controlled activity include a search of the ISA barred lists.

From April 2010, English and Welsh employers and voluntary organisations that do not know whether or not a new entrant or mover into a controlled activity is on one or both of the ISA barred lists must apply to the CRB for enhanced disclosure with a barred list check on that individual. Prior to April 2010, employers should undertake an audit of operational areas to establish if and where controlled activities are performed and whether or not potential future recruits and transferees may carry out controlled activities. Using this information, affected employers (ie those that undertake controlled activities) should update their recruitment procedures to include a requirement that, from April 2010, new and transferring employees and volunteers into controlled activities are subject to an enhanced CRB check.

5. Prior to 1 November 2010, update recruitment procedures to ensure that ISA-registration checks are carried out on employees who will be new, or who will transfer, into a regulated activity, from that date.

From 1 November 2010, all new and transferring employees and volunteers into a regulated activity must be registered with the ISA. Employers and voluntary organisations must check that these individuals are ISA-registered before they engage them in a regulated activity. Therefore, employers should ensure that they put procedures in place so that the ISA registration of all individuals new to, or transferring into, a regulated activity from that date is checked before they start.

6. From July 2010, consider amending job advertisements and other recruitment documentation for positions in a regulated activity so that they specify that the applicant must be ISA-registered.

From 26 July 2010, individuals will be able to apply for ISA registration if they are moving into a new role in a regulated activity. Although registration for all new entrants and existing employees and volunteers changing roles in a regulated activity will not be mandatory until 1 November 2010, employers and voluntary organisations should consider using the July date to kick-start the registration-checking process. The reason for this is two-fold. First, because employers and voluntary organisations will have a statutory obligation from 1 November 2010 to check that new employees (and volunteers) are ISA-registered before allowing them to engage in a regulated activity, recruitment documentation used in the period up to November 2010 (and beyond) should make this requirement clear. Second, employees and volunteers engaged, or transferring in, during the July to November period will have to be registered with the ISA in any event at some point prior to 31 July 2015 (the date by which everyone working in a regulated or controlled activity must be registered). Therefore, by requiring registration at the earliest opportunity, employers avoid the need to check registration at a later date prior to 31 July 2015.

7. Put in place a plan for checking ISA registration for all existing employees and volunteers in regulated and controlled activities.

By 31 July 2015 all employees and volunteers working in a regulated or controlled activity must be ISA-registered. Organisations that are responsible for the control or management of regulated and/or controlled activities should put in place a plan for ensuring that, by 31 July 2015, they have checked that all employees and volunteers carrying out those activities are registered with the ISA.

8. Consider whether or not to contribute towards the cost of ISA registration.

The ISA system will be funded by employees who register with it, which they will be able to do from 26 July 2010. They will be required to pay a fee of £64. Volunteers will not be required to pay the registration fee.

Although it may not seem unreasonable to ask new employees to pay the registration fee, employers may wish to consider paying the registration fee on behalf of existing employees, particularly as many people working with vulnerable groups are low paid. Employers need to consider the cost implications of paying registration fees (taking into account the number of affected employees and the likely turnover of individuals within the affected roles and groups) and budget accordingly. However, because of the large number of existing employees and volunteers who will be required to register, the Government has stated that it intends to phase in this requirement over a period. It will be producing its recommendations on the implementation process in due course. Employers will have to wait for those recommendations before they can budget for future costs in this respect with any degree of accuracy.

Next week's article will be the first in a series on dealing with alcohol misuse during the Christmas period and will be published on 30 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.