Historically, hard cases tend to make bad law: the Safeguarding Vulnerable Groups Act 2006 arose out of the Bichard Inquiry, which followed the murder of two Soham schoolgirls by their school caretaker in 2002.
The aim of the legislation was to set up a universal single agency to vet all individuals who wanted to work with vulnerable groups and bar unsuitable people from doing so. This is called the Independent Safeguarding Authority (ISA), which operates what has become known as the vetting and barring scheme.
The current scheme predominantly affects employers in the public sector and the voluntary sector. The legislation also appears to cover third-party service providers responsible for outsourced services.
Activities covered by the legislation include teaching, training, instruction, supervision and direct contact in prescribed establishments such as schools, care homes and childcare premises. More controversially, from 2014, registration would have extended to controlled activities that were frequently or regularly carried out and that gave the worker the opportunity to have any form of contact with vulnerable groups or their records. This is potentially very wide-ranging, covering IT support workers for example, and created onerous requirements upon employers to monitor the suitability of such staff.
In June 2010, the new coalition Government announced an immediate halt to the registration system at the heart of the scheme and, in February 2011, it announced that the scheme will be modified and scaled back.
Affected employers have faced a number of difficulties under the current scheme. Details of the revised scheme are still awaited, but what already seems clear is that while there will be a number of key benefits for employers, certain problems remain.
Currently, the ISA may decide to place a person on its list by virtue not only of a conviction of a listed offence but also by virtue of his or her conduct or a perceived risk of harm. Once placed on the list, an individual is notified of the fact and advised that he or she can make representations. It will be clear, however, that for such employees the consequences of being placed on the list can be extremely serious in terms of their employment.
Commentators have previously raised concerns about whether or not the operation of the scheme raises serious issues under the Human Rights Act 1998. Shortly before Christmas 2010, these came to the fore in a challenge brought by the Royal College of Nursing. Three nurses successfully claimed in the High Court that the system infringed their rights. They had all been barred for relatively minor offences.
In two cases, the individuals were accused of having left their own children alone at home for a short period of time. In the third case, the individual had accepted a caution for having kissed a woman without her consent when he offered her a lift in his car. All made representations about being placed on the list and, at the time of the High Court hearing, all three had been removed from the list. They had, however, all suffered significant loss of earnings.
In the view of the High Court, the barring of these individuals in these circumstances for less serious offences, pending any representations from them, breached their human rights. Article 6 of the European Convention on Human Rights gave them the right to have a fair and public hearing by an impartial tribunal. The process adopted by the ISA did not comply with this requirement. Employers should therefore anticipate that this potential breach will be remedied under the revised scheme.
Any system of registration will be only as good as the information on which it is based. Therefore, employers will continue to face problems in relation to foreign workers. Foreign police forces cannot currently be compelled to provide relevant information on these workers and this is not likely to change under any revised system in the short term. This potential information gap will continue to pose a serious challenge to the effectiveness of the scheme.
Finally, the good news for employers is that there seems likely to be a significant decrease in the number of people who will need to be registered and continually monitored. For example, a reduction in the numbers of staff engaged in “controlled activities” who would need to be registered is estimated to impact on up to as many as 9 million people. The need for effective monitoring and supervision of staff throughout the employment life cycle, however, remains as important as ever.
Catherine Wilson, partner, Thomas Eggar