Public & Administrative Law Update: Mandatory Vetting – Six Top Tips for Organisations
04 July 2018
Statutory obligation to conduct vetting
Mandatory vetting was introduced in Ireland in 2016 by an amendment to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The legislation provides that a ‘relevant organisation’ cannot employ, contract, permit or place a person to undertake relevant work or activities relating to children or vulnerable persons, unless it obtains a vetting disclosure from the National Vetting Bureau.
What organisations need to carry out vetting?
Relevant organisations include any person, body corporate or unincorporated body of persons that employs, contracts or permits a person to carry out relevant work/activities on behalf of the organisation. Public bodies and charities can fall within this scope. The definition also has wide reach, and incorporates situations whereby if organisation A permits organisation B to carry out relevant work or activities on its behalf, organisation A will be obliged to obtain its own vetting disclosure in relation to the persons carrying out the work. These people could be employees of organisation B, even though organisation B has already obtained vetting disclosures for those individuals. This could arise if an organisation contracts or permits persons who are employed by another organisation to carry out, for example, an educational programme with children/students on its behalf.
What is “relevant work or activities”?
Relevant work or activities include the provision of educational, training, cultural, recreational, leisure, social or physical activities predominantly to children or vulnerable persons. It also includes any treatment, therapy or counselling provided to a child or vulnerable person, as well as any care or supervision of children/vulnerable persons. The definition is broad and organisations should carefully consider whether they employ, contract, or permit any person to carry out relevant work or activities on behalf of the organisation.
Are there any exemptions?
There are limited exemptions under the Act. However, these include an exemption where the work/activity is undertaken in the course of a family relationship or in the course of a personal relationship and for no commercial consideration. In addition, where an individual assists at a school, sports or community event/activity, on an occasional basis and for no commercial consideration, that individual does not require vetting, unless he/she is involved in coaching, mentoring, counselling, teaching or training of children or vulnerable persons.
6 Top tips for organisations
- Consider all activities undertaken by any persons on behalf of your organisation to determine if any activity could be considered “relevant work or activities”.
- Carefully review the exemptions under the Act to ascertain if vetting may not be required.
- If you are working with other organisations in providing relevant work or activities, consider how your obligations are to be managed between the various organisations. There are a number of options in this regard on which you may wish to obtain advice.
- Draft a vetting disclosures policy detailing how to request and manage vetting disclosures and how to store the disclosures, bearing in mind data protection legislation. The policy should also detail the procedure for considering any information disclosed in a vetting disclosure and in assessing the suitability of the person to undertake relevant work or activities.
- Keep an eye out for the re-vetting regulations which are currently awaited. In the meantime, consider re-vetting relevant persons every three years as best practice.
- At the same time, consider the Children First Act 2015 and whether your organisation could be the “provider of a relevant service”. A relevant service includes any activity consisting of the provision of educational, research, training, cultural, recreational, leisure, social or physical activities to children. It also includes care or supervision of children and any treatment, therapy or counselling provided to children. Again, this definition is broad and your organisation should carefully consider this legislation. If your organisation falls within the scope of this Children First Act, it will need to carry out a risk assessment and prepare a child safeguarding statement.
Organisations should give careful consideration to the statutory requirement to obtain vetting disclosures. Each relevant organisation is obliged to obtain its own vetting disclosure and a failure to adhere to this requirement is a criminal offence. Penalties for a breach of the obligation include fines of up to €10,000 and/or imprisonment for up to five years.
For more information on your organisation’s requirements relating to vetting, contact a member of our Public & Administrative Law team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.