The vetting of personnel in Ireland is currently carried out on a non- statutory and essentially voluntary basis. At present, organisations can apply to the Garda Central Vetting Unit to be registered for the purposes of vetting. In the absence of legislation governing vetting, the Garda Central Vetting Unit acts in accordance with its own policies. It has discretion as regards registering organisations, and a primary consideration is the level of unsupervised access that the organisation’s employees will have to children or vulnerable adults. Once registered an organisation can then request that prospective employees are vetted by the Garda Central Vetting Unit.
The intention now is to put the vetting process on a more formal, compulsory and statutory footing. The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (the “Act”) was enacted in December 2012, however the Act has not yet been commenced and is therefore not yet in force. Commencement is expected before Summer 2014.
The first point to note is that the Act provides for a very wide definition of “relevant work” to which the Act applies, and it is obligatory that new employees or contractors involved in such relevant work are vetted (subject to certain exceptions such as occasional voluntary assistance at a sports or community event for example). This wide definition may now cover organisations that previously felt no obligation to register. Schedule 1 of the Act sets out the various types of work or activities that are now caught, and in particular there is no longer a requirement that the work involve “unsupervised” access.
The body that will carry out the vetting will now be called the National Vetting Bureau (of the Garda Siochana) and it is required to establish and maintain a database to be known as the National Vetting Bureau (Children and Vulnerable Persons) Database System (the “Database”). This Database is to be comprised of three registers:
- A register of “relevant organisations”;
- a register of “specified information”; and
- a register of “vetted persons”.
Where an organisation is to employ or engage persons to carry out relevant work as defined in the Act, it must register with the National Vetting Bureau and be entered onto the register of relevant organisations. Section 8 of the Act sets out the application process, though it provides discretion to the National Vetting Bureau as to the type of forms required and no such form is yet available. There is however a provision in the Act whereby a relevant organisation that is currently registered with the Garda Central Vetting Unit shall automatically be deemed registered on the new register, and the Act also provides that one registered organisation is permitted to make vetting submissions on behalf of another organisation. A registered organisation must nominate one or more “liaison persons”, who themselves must be vetted, and it is with these liaison persons that the National Vetting Bureau will correspond with regard to the vetting of personnel.
Secondly, the Act requires that a register of “specified information” be established. This register will contain information that will be checked before a vetting disclosure is granted in respect of a person. Such information will include details acquired during a Garda investigation, or received from bodies such as the HSE or the Teaching Council, which results in a bona fide concern that such person may harm or cause to be harmed a child or vulnerable adult.
Thirdly, the Act requires that a register of vetted persons be established and maintained, and section 11 of the Act sets out the type of information that will be contained on the register. However the Act also provides that any person who has currently been vetted and registered with the Garda Central Vetting Unit shall automatically be deemed entered into the register of vetted persons.
Sections 12 to 15 of the Act set out the procedure for having an individual vetted, and if successful the process results in a “vetting disclosure” in respect of that person. Subject to limited exceptions a relevant organisation may not employ or engage a person to carry out work with children or vulnerable adults unless that person has received a vetting disclosure, although this restriction is not immediately applicable to persons who commenced their employment or engagement before the commencement of this section of the Act. However, the Act provides that retrospective vetting may be required by the Minister for Justice and Equality and he may also require that vetting disclosures be updated or renewed after a certain period of time (which period has yet to be determined).
Failure to comply with certain sections of the Act, such as the requirement that relevant organisations obtain vetting disclosures in respect of personnel carrying out relevant work, is an offence capable of prosecution. Where the offence is committed by a body corporate the offence can be attributable to a director, manager, secretary or other officer of that body corporate.
Advice to Relevant Organisations
Organisations not currently registered with the Garda Central Vetting Unit may now find themselves obliged to register under the new legislation. Considering the potential for delays and teething issues with the new procedures, it may be worthwhile for such organisations to register now with the Garda Central Vetting Unit so as to avail of the fact that they will then be deemed as registered under the Act once it is commenced. Failing that, relevant organisations should begin to collate the information necessary for registration and consider drawing up an internal plan detailing how any new administrative requirements will be carried out. Finally, and perhaps most importantly, employers should consider updating their employment contracts and policies with appropriate wording so that prospective employees are fully aware that any job offer or continued employment is subject to a vetting disclosure being obtained and held at all times in respect of that person.