Vetting and barring scheme: frequently asked questions

Sue Nickson of Hammonds LLP continues a series of articles on the vetting and barring scheme with some frequently asked questions that look at employers' obligations under the scheme. From 12 October 2009, employers that are recruiting individuals to work or volunteer in a regulated activity with children or vulnerable adults must obtain enhanced CRB checks to establish whether or not those individuals are on either of the barred lists held by the Independent Safeguarding Authority. However, the requirement to check whether or not an individual being recruited into a regulated activity is registered with the Independent Safeguarding Authority does not come into effect until 1 November 2010. 

How will the first phase of the vetting and barring scheme affect employers' recruitment practices?

The first phase of the vetting and barring scheme was implemented on 12 October 2009. Included in the first phase was the introduction of a statutory offence that impacts on employers' recruitment practices.

Since 12 October it has been an offence for an employer or voluntary organisation to allow a person who it knows, or has reason to believe, is barred from working with children (ie anyone under the age of 18) or vulnerable adults to engage in a regulated activity. The Independent Safeguarding Authority (ISA) maintains lists of individuals who are barred from working with children and vulnerable adults. "Regulated activity" is defined in the Safeguarding Vulnerable Groups Act 2006, which forms the legislative framework for the scheme. For most purposes "regulated activity" covers anyone who works closely with children or vulnerable adults on a frequent (ie once a month or more) or intensive (ie on three days or more in a single 30-day period) basis. However, for the purpose of this particular offence, the frequency is irrelevant.

As a result, employers and voluntary organisations must require a search of the ISA barred lists when they make a disclosure request to the Criminal Records Bureau (CRB) as part of their checks on candidates for positions in a regulated activity. Standard CRB disclosure no longer includes a search of the lists of barred individuals. Instead, organisations must request enhanced disclosure, which includes a search of the ISA barred lists.

What other duties does the vetting and barring scheme impose on employers?

Since 12 October 2009, employers and voluntary organisations that are responsible for the control or management of a regulated or controlled activity have been under a statutory duty to refer to the ISA any relevant information that they hold about an individual who works with children or vulnerable adults in a regulated or controlled activity where they consider that person to have caused harm or to pose a risk of harm to children and/or vulnerable adults. "Controlled activity" is work that does not constitute a regulated activity but that provides opportunities for any form of contact with children and vulnerable adults.

The new duty to refer applies if the organisation withdraws permission from the individual to carry out the activity (for example, it dismisses him or her), or it would have withdrawn permission if the individual had not, for example, resigned prior to, or as a result of, an internal investigation process, or been made redundant or retired. See Vetting and barring scheme: case study in this series for further details of the conditions that must be met for the duty to refer to be triggered.

Is there an additional cost associated with checking the ISA barred lists?

Other than the fee for the enhanced CRB check, which is £36, there is no additional cost associated with checking whether or not an individual is on one or both of the ISA barred lists. The ISA barred lists can be searched only as part of an enhanced CRB check. When the registration system is up and running, affected individuals will be required to register with the ISA, at a cost of £64. There will be no registration fee for unpaid volunteers.

From 26 July 2010, employers and voluntary organisations will be able to access the ISA system online and will be able to check an individual's ISA status (ie whether or not he or she is ISA-registered). There will be no charge for this facility but organisations must have a legitimate interest in the individual for employment or volunteering purposes and have his or her consent.

Is carrying out an ISA online registration check the same as checking to see if an individual is on the ISA barred lists?

No. The ISA online registration check will not disclose if an individual is barred or the reasons for a bar - it will show only whether or not he or she is ISA-registered and, by implication, that no information is held that demonstrates that the individual poses a risk of harm to children or vulnerable adults. An individual cannot be both ISA-registered and on one or both of the ISA barred lists. However, non-registration does not imply that an individual is barred. For example, an individual may not have applied to join the registration scheme, or he or she may have left it voluntarily.

To establish whether or not an individual is barred, an employer or voluntary organisation will have to request an enhanced CRB check in addition to the ISA online check. Once an individual is registered with the ISA, organisations that have registered an interest (see previous question) in that individual will be advised of any subsequent changes in his or her ISA status (ie that he or she is no longer registered). The reason for the change in registration status is likely to be that the ISA has received new information about the individual concerned and has reviewed its original decision (made when the individual applied for ISA registration) not to bar him or her. If the organisation in question wants to establish whether or not the individual has been placed on one or both of the barred lists and the reasons for the subsequent decision to bar, it will have to request a further enhanced CRB check.

When will employers and voluntary organisations be legally obliged to check whether or not potential new employees and volunteers into a regulated activity are ISA-registered?

Employers and voluntary organisations recruiting new employees and volunteers into a regulated activity, or transferring existing employees and volunteers into a regulated activity will be required, from 1 November 2010, to check whether or not they are registered with the ISA. New entrants and existing employees and volunteers changing roles into a regulated activity must be ISA-registered from this date, although they will be able to register with the ISA from 26 July 2010.

When will employers and voluntary organisations have to check the ISA status of existing employees or volunteers carrying out regulated activities?

The vetting and barring scheme is being introduced in phases. From 1 April 2011, employees and volunteers who are already working in a regulated activity will be able to apply for ISA registration. By 31 July 2015, all individuals working in a regulated activity must be ISA-registered. See the implementation timetable in Vetting and barring scheme: overview in this series for more details.

Because of the large number of existing employees and volunteers who will need to register between 2011 and 2015, the registration process is likely to be phased so that individuals who were not originally CRB-checked, or whose CRB checks were done a long time ago, will be asked to apply for ISA registration first.

When will employers and voluntary organisations that engage employees and volunteers in a controlled activity be required to ensure that those individuals are ISA-registered?

The vetting and barring scheme is being phased in up to 2015 in relation to controlled activities. From April 2010, employers and voluntary organisations in England and Wales that do not know whether or not a new entrant or mover into a controlled activity is barred must make an enhanced disclosure request to the CRB, which includes a check of the ISA barred lists.

From 1 January 2014, the Government will recommend that individuals already working in a controlled activity should apply for ISA registration.

From 31 July 2015, an individual in a controlled activity will either have to be ISA-registered or (if barred from regulated activity) subject to safeguards that the employer or voluntarily organisation must put in place after carrying out a risk assessment. The number of individuals falling into the latter category is likely to be limited.

The Government will be producing guidance in respect of the post-July 2015 requirements in due course. It will also publish recommendations on the dates from January 2014 when individuals in a controlled activity should register with the ISA.

Next week's article will be a checklist to help employers comply with their obligations under the vetting and barring scheme and will be published on 23 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.