Employment Law Update (June 2010)

Vetting and Barring Scheme "halted"

The Vetting and Barring Scheme in England and Wales has been "halted" by the new coalition Government, the Home Secretary, Theresa May, announced on 14^th June. The Scheme will be put on hold pending a "wide-ranging review", with the aim of "scaling the scheme back to common-sense levels".  An equivalent scheme in Scotland is still planned to come into effect by the end of this year, but details of the Scottish scheme have yet to be decided.

The outcome of the review of the Scheme in England and Wales will not be known for some time, so here is our quick guide to help you understand what is already in force, what's been put on hold, and how to deal with things until the review is completed.

What's already in place?

The Vetting and Barring Scheme came into effect in October 2009, and covers new entrants to "regulated activities" – a wide range of jobs and volunteer positions which are defined by the Scheme. For further information on what count as "regulated activities", see below.

It also created the Independent Safeguarding Authority (ISA), which maintains the lists of people barred from working with children and vulnerable adults and which now makes all barring decisions.

The following provisions remain in force:

• Many more job roles now come within the definition of "regulated activities";
• It is a criminal offence to knowingly employ a barred person in a "regulated activity";
• It is a criminal offence for a barred person to work in a "regulated activity"; and
• It is a criminal offence to fail to report to ISA the removal of a person from regulated activity because the person has caused harm. This would include a situation where an employee was dismissed for causing harm or left prior to being dismissed following accusations of causing harm.

What's been postponed?

The implementation of the online database has been postponed. The online database was intended to go live in July and to be compulsory for new entrants to regulated activities from November this year. The process of individuals going onto the online database is called "ISA-registration".

ISA-registration was central to the whole Vetting and Barring Scheme – because it allowed for continuous monitoring of individuals.  It would also allow employers to be updated instantly if an individual was removed from the register.

Why is this happening?

The Government's decision to halt further implementation of the Vetting and Barring Scheme follows protests, highlighted in the media, when the first part of the scheme was introduced in October 2009.

The protests were mainly from volunteers or people who only came into contact with children or vulnerable adults occasionally, but who nonetheless came within the definition of performing "regulated activities" and so needed to be ISA-registered. As a result of the protests, the definition of "regulated activities" has already been changed and the position of private arrangements clarified.

However, the decision to "halt" further implementation of the scheme and for a wide-ranging review to take place indicates that even the recent changes to the Scheme are not sufficient.

What's likely to happen?

The review has its origins in a commitment made in the Conservative Party manifesto at the 2010 general election to "scale the scheme back to common sense levels".

However, the principal innovation of the Scheme – continuous monitoring – was a central recommendation of the Bichard report on failures of the existing systems that resulted in the Soham murders. It seems unlikely that any review would scrap continuous monitoring and online access altogether.

The main aim of the review is likely to be to reduce the numbers of people who need to become ISA-registered, but this would mean re-defining yet again the definitions of "frequent" and "intensive" activity, or how "contact" with children or vulnerable adults is defined. These are not easy matters to re-define, either to get the appropriate level of protection for vulnerable people, or in terms of the legal changes that would now be necessary.

What should I do as an employer?

1. Check which job roles qualify as "regulated activities". These are jobs that involve contact with children aged under 18 or vulnerable adults, and are either activities specified by law or that take place in a care or education setting, and where the activity is frequent, intensive or overnight.
2. If you are recruiting a new person into a job which is a "regulated activity", to ensure you are meeting your legal obligations you can apply to the Criminal Records Bureau (CRB) for an Enhanced Disclosure on the individual.
3. Download our updated Toolkit of policies and procedures. Our toolkit has been updated to take into account the latest changes to the Scheme. 

If you have any queries on the impact of the "halting" of the Vetting and Barring scheme on your business, please speak to the Mentor Employment Law Team.