Important changes to criminal records and barring arrangements have recently been implemented with an impact on the existing duty of employers, especially with regard to checks required to be carried out in the recruitment process. These changes have been made in an attempt move towards more effective safeguards where harm or risk of harm is identified, acted upon and prevented.
The Safeguarding Vulnerable Groups Act 2006
The Vetting and Barring Scheme ("VBS") under the 2006 Act was created with a view to registering and monitoring individuals, particularly those who would undertake 'regulated activities' or 'controlled activities' with children or vulnerable adults. Such individuals had to register with the Independent Safeguarding Authority ("ISA") and would be barred from such work if they were found to pose a risk. It was made a criminal offence to participate in regulated activities whilst unregistered and for employers or service providers to engage unregistered individuals in regulated activities. The VBS initially required 9 million people to be registered and was criticised as being disproportionate and for moving responsibility for the workforce away from employers.
Protection of Freedoms Act 2012
Under this new legislation, the national barring function is retained, but reduced in scope to a more proportionate level. The Protection of Freedoms Act 2012 achieves this by narrowing the scope of what was formerly a "regulated activity", and by abolishing the concept of a "controlled activity" (which would have required registration under the VBS by those individuals who had lesser contact with children or vulnerable adults). It is anticipated that these changes will nearly halve the number of individuals across the country that will now be affected by the new legislation – from 9 million people to 5 million.
The other main changes being introduced are as follows:
The ISA has now transferred its powers to the Disclosure and Barring Service ("DBS")
As of 1 December 2012, the DBS has taken over the role of both the ISA and the Criminal Records Bureau to carry out the combined functions of both former organisations. Employers who engage barred individuals in regulated activities will still be subject to criminal sanctions; and the DBS must still be informed if somebody is dismissed or prevented from participating in a regulated activity for posing a risk to a vulnerable group.
New definition of who is covered
The new definition no longer identifies adults as 'vulnerable'. Instead, the definition identifies specific activities which, if any adult requires them, lead to that adult being considered vulnerable at that particular time. The new regulated activities will include the following:
- Regular or close contact with children (which is defined as contact on three days per month or more, or less frequent contact during unsociable hours);
- Providing health care, personal care or providing assistance with money (including cash, bills or shopping) for adults; and
- Work which involves making welfare decisions on behalf of those adults who lack capacity.
Those individuals who are not performing such regulated activities in the course of their employment or engagement may still be subjected to enhanced CRB checks, if appropriate. However, the results of such checks will now only be sent to applicants, not also to their employer (or prospective employer). This will allow an applicant time to dispute (and where appropriate, amend) the information contained in the certificate before it is seen by any other party.
Changes to CRB checks
People aged under 16 years of age will no longer be eligible to apply for CRB checks. This is on the basis that individuals of this age should not be put in a position where they have responsibility for adults who are in a vulnerable situation, or children. In addition, third parties as well as applicants will now be able to challenge information on a CRB check that they believe to be inaccurate. There will also be a more rigorous relevancy test for disclosure of information on an enhanced CRB check, and a right of review for unnecessary information held on such certificates.
Update Service
It is anticipated that at some point in 2013, a facility will be introduced to allow individuals to apply once for a CRB check, which can be kept up to date online and used by multiple employers. Users will have to subscribe online and pay a fee for this service.
Practical advice
Charities should be aware of the new definition of regulated activity and adapt their recruitment process accordingly. Every role should be assessed to determine whether it involves a regulated activity (as it is now defined) or some other responsibilities which merit a CRB check being undertaken; and any member of staff or volunteer whom it is proposed to engage in such a role should be subject to the appropriate checks.
Due to the criminal liability that could be incurred by employers and the potential for harm if new regulations are not complied with, if an organisation is unsure of its obligations they should take a precautionary approach and seek advice from a legal representative or the appropriate body.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
