Do you know who you employ?

Recruits into the health sector are diverse. Many, but not all, potential recruits into the sector, whether employees or volunteers, must undergo background checks before being offered work. Where the recruit is being employed, or engaged as a volunteer, to work with children or vulnerable adults in certain types of activity, the employer must check to see whether the person’s name appears on the appropriate barred list and perform a Criminal Records Bureau (CRB) check.

The barred lists
The Independent Safeguarding Authority (ISA), which was created to vet and register all individuals wanting to work or volunteer with children or vulnerable adults, maintains the two barred lists, which have replaced the previous statutory lists (POCA and POVA). For those who employ people or use volunteers to work with children or vulnerable adults, there is a duty not to knowingly employ, or use as a volunteer, a barred person in regulated activity.

Regulated activity covers specific activities and certain situations where individuals have the opportunity to have contact with children or vulnerable adults and work is carried out on a frequent, intensive or overnight basis. In order to comply with this requirement, those who employ or engage volunteers to work with children or vulnerable adults must check the barred lists, which will reveal whether or not the applicant is barred from working with people in those categories.

CRB checks
Employers are able to apply for a CRB check in respect of certain eligible positions including those which involve working with vulnerable adults or children in regulated activity. Unless workers fall within one of the eligible positions, an employer should not request such a check and indeed the NHS has been criticised in the past for applying for CRB checks in respect of workers who are not eligible because they do not have access to vulnerable adults (or patients), such as administrative, technical and laundry staff.

Since 12 October 2009, there has been a right to ask for an enhanced, rather than a standard disclosure when performing a CRB check in respect of most individuals whose work does involve regulated activity, such as nurses and midwives. The enhanced check is the highest level of check available.

Where background checks are required, employers should make it clear to prospective employees that any provisional offer of employment will be subject to the checks being carried out and satisfactorily completed. It should also have a clear policy on what satisfactory completion means, as it may be that different roles have different requirements.

Timely and effective checks
Not only is it crucial to make the appropriate background checks, but it is also important that the checks should be carried out in a timely and effective way, as highlighted by a claim made recently against an NHS Trust.

The trust concerned carried out CRB checks in advance of confirming the appointment of staff and, in common with usual practice, made an offer of employment conditional upon satisfactory CRB clearance. In this particular case, the claimant, who had applied for a number of other positions with the trust and, on one occasion had been offered a role but declined that offer of employment, applied to be a medical secretary in a hospital.

The CRB check showed that the claimant had a cautions for drug use and assault. Upon receipt of the CRB check, and the subsequent risk assessment which was then undertaken, his conditional offer of the medical secretary position was withdrawn. There was some delay whilst the CRB was received and the risk assessment undertaken. During this period the claimant attended the department and met some of his proposed future colleagues.

Employment Tribunal
The trust received an Employment Tribunal claim, in which the claimant alleged that the real reason the offer of employment had been withdrawn was his sex and/or sexual orientation and/or disability. His claim was made on the basis that, having applied for previous positions within the trust, it already had information relating to his cautions and so the withdrawal of the offer must have been on other, namely discriminatory, grounds. He also referred to his perception about the attitude of one particular member of staff at the trust whom he met during his visit to the department.

The fact that the trust was already in possession of the relevant information relating to the cautions before the offer was made left the claimant with the impression, when the offer was subsequently withdrawn, that his criminal record was not the real reason for withdrawal of the offer. This was exacerbated by the fact that the claimant had been offered a previous position, which he had declined, having passed the risk assessment upon receipt of the CRB check on that occasion.

The Employment Tribunal had to consider whether or not the claimant had been discriminated against. As it is rare that there is ever any direct evidence of underlying discrimination, the tribunal had to consider whether it could infer from the behaviour of the parties that there have been discrimination. It is often the case in discrimination claims such as this one that a tribunal is invited to draw an inference that there has been discrimination from the circumstances of the application and the subsequent progression of the matter.

Ruling
The Employment Tribunal was persuaded, in a full hearing, that there was no discrimination in this case, and that the reason for the claimant’s rejection in respect of this particular role, when compared to the previous role for which the claimant had applied, was the nature of the convictions and the role to be performed which resulted in different risk assessment results. The case against the trust was therefore successfully defended but not before the trust had been put to the trouble of defending the matter in an Employment Tribunal, with all the associated costs and management time which legal proceedings brings.

This case therefore serves to highlight the importance, when the information is already in the possession of the trust, of progressing statutory checks before making formal offers of employment and before progressing visits to the proposed working environment. Even where statutory check information is not immediately available, it is important to ensure that the processes adopted are made clear to the potential recruit and are progressed without undue delay.

The future for background checks
Both the criminal records regime and the vetting and barring scheme are currently under review.

The vetting and barring scheme was intended to improve the safeguarding of children and vulnerable adults by ultimately requiring all workers or volunteers working in a “regulated” activity to register with the ISA. The first phase of voluntary registration under the scheme was to have begun on 26 July 2010, but this first phase of registration was halted by the government pending the review. Notwithstanding the review, the government announced that aspects of the scheme which were already in place should remain so. Consequently, the ISA, which was created to vet and register all individuals wanting to work or volunteer with children or vulnerable adults, continues to maintain the two barred lists and to accept referrals (see below).

The legal obligations introduced in October 2009 also continue to apply. So, those barred from regulated activity with either children or vulnerable adults must not work, or seek work, in regulated activity with that group. For those who employ people or use volunteers in regulated activity, there are two duties. There is a duty not to knowingly employ, or use as a volunteer, a barred person in regulated activity, and a duty to refer individuals to the ISA for consideration for barring in relevant circumstances and to provide information to the ISA on request.

The duty to refer applies if an employer dismisses a worker or a volunteer because they have harmed a child or vulnerable adult, or if the employer would have dismissed had the worker or volunteer not left. Note that the equivalent Scottish scheme, the Protection for Vulnerable Groups scheme, has also been put on hold.

The Criminal Records Regime
The review of the criminal records regime is looking at:
• the broader issues around the disclosure of criminal records
• the balance between civil liberties and public protection in relation to the current use of the Criminal Records Bureau service
• ensuring that the systems are proportionate and less burdensome
• the use of Police intelligence as part of CRB Checks.

The final recommendations for these schemes will be announced in the coming months and will inevitably have some impact on recruitment in the health sector. It will be interesting to see just how far reaching the review
will be.