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Vetting schemes latest

Employment Law & HR update 03/08/2011

If you employ staff in the care or education sectors, or if you are a contractor working on school or care premises, you probably already know about the need for Criminal Records Bureau (CRB) checks.  But the recent introduction of the Vetting and Barring Scheme in England and Wales and the Check to Protect Scheme in Scotland may have left you feeling confused about what the exact requirements are.  Here's a quick update.

England and Wales – the Vetting and Barring Scheme

The Vetting and Barring scheme was introduced following the Soham murders.  It involved an additional layer of checks over and above Criminal Records Bureau (CRB) checks for those working with children or vulnerable adults.  Computer problems meant that the online database at the heart of the scheme was repeatedly delayed and has still not been implemented.  In addition, the sheer number of people potentially captured by the scheme – estimates were upwards of 11 million people at one point – made many people uneasy.  The Scheme would also have required many employees and tradespeople who only had occasional contact with children to register on the central ISA database and be subject to continuous monitoring.

Following the 2010 election, the new Coalition government promised to scale the scheme back to what it called "common sense levels".  The new proposals are contained in the Protection of Freedoms Bill, which is currently passing through Parliament.  The result is a scheme that is being comprehensively remodelled and will mean scrapping the database associated with the Vetting and Barring Scheme.

The proposals apply to England and Wales only.  The Scottish Protecting Vulnerable Groups (PVG) scheme exists under separate legislation and is not affected (see details below).

The Proposals

  • Scrapping ISA-registration and continuous monitoring of individuals and the separate ISA database
  • Criminal Records Bureau (CRB) checks will continue to be available and to be necessary for most workers in the care and education sectors
  • CRB checks will be made portable between different employers and updatable 
  • The definition of "regulated activities" involving either children or vulnerable adults will be changed to reduce the number of jobs and voluntary posts covered. 
  • Occasional visitors to schools or care premises (such as tradespeople), and volunteers who are subject to "day to day supervision" will no longer count as doing "regulated activities"
  • Work involving personal care will automatically be a "regulated activity"
  • To make the system self-funding, the cost of CRB checks will increase

Practical impact for employers

The new rules will give employers involved in care or education a greater burden to assess the risks associated with certain job roles within their organisation and to vet their employees in a proportionate way.  The proposals make it clear that employers cannot rely on the State to provide absolute safeguards.

There will also be additional costs – CRB checks will increase in price, and "updatable" checks will involve additional charges.

For SMEs whose business is not care or education – but whose activities might involve visiting care or school premises – there is better news.  The biggest impact to these employers will be that workers and tradespeople will no longer need to be registered or checked just because they occasionally visit care or school premises.

The current legal position

Because new legislation is required to make the changes, the proposals will not come into effect until April 2012 at the earliest, and employers should follow the existing rules in the meantime.  This means that an Enhanced CRB Disclosure should be obtained for new entrants to "regulated activities".  All existing offences remain in place until the law is changed.

Scotland– PVG / "Check to Protect" Scheme

The Scottish PVG / "Check to Protect" Scheme came into force at the end of February 2011.

The Scottish scheme effectively provides for a "live" Disclosure to people who apply for "PVG Scheme Membership" (and so replaces the Enhanced Disclosure for these roles). 

Who does the Scheme apply to?

The PVG Scheme applies to people who do "regulated work".

"Regulated work" includes work in child education or in child or adult care, and other activities on school and care premises that might involve the opportunity for unsupervised contact with children or adult service users.

"Work" involves both paid and unpaid work and it need not be the person's normal contractual job.

Therefore, tradespeople visiting school and care premises are doing "regulated work" if the work is part of their normal duties and if they are likely to come into unsupervised contact with children or service users.

Who needs to register?

Initially, only new entrants to "regulated work" from 28th February are required to become PVG Scheme members. 

This will be done in the same way as applying for an Enhanced Disclosure, and the result will take the place of an Enhanced Disclosure.

Existing employees doing "regulated work"

Disclosure Scotland has stated that it is not legally necessary for employees who were already in "regulated work" roles before 28th February 2011 to apply for PVG Scheme membership until they are required to do so under the transitional provisions.  Details of the transitional arrangements are yet to be announced but they will not commence until 2012 at the earliest.  In the meantime, applications by such persons will be declined by Disclosure Scotland.

What about updating existing CRB checks?

Employers may have procedures in place for existing employees to obtain updated Disclosure Scotland checks after a certain period, which in many cases is every 3 years.  Disclosure Scotland state that they will not process these checks unless there are exceptional circumstances.  Again, new checks can only be made when the transitional provisions are in place.  Disclosure Scotland point out that an employer only commits an offence if it recruits a barred person into regulated work.

 

If you would like further information, and already subscribe to RBS/NatWestMentor, please call the Advice Service. If you would like more information on how Mentor could help your business in situations like this and many others, contact us today for information.

 

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