On 29 April both the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 and National Vetting Bureau Acts 2012-2016 were commenced. These changes will have a significant impact on employer vetting and background check procedures.
The Spent Convictions Act changes what type of convictions an individual must or might be compelled to disclose. If someone aged 18 or over was convicted of an offence that was more than 7 years ago and the sentence imposed was for 12 months or less they are not required to disclose this and can consider the conviction 'spent'. The Spent Convictions Act only applies to single offences. It does not apply to sexual offences or offences that were tried in the Central Criminal Court. The spent convictions may also have to be disclosed if the person is before a court.
This will impact employers who require candidates/employees to complete a self-certification criminal background confirmation. Candidates/employees will not have to disclose any conviction that complies with the legislation and cannot be penalised for failure to do so. There are some further exceptions for certain State jobs and work with children or vulnerable adults.
The National Vetting Bureau Acts have been anticipated for a number of years and finally put on a statutory footing the requirement for organisations working with children and vulnerable persons to vet prospective employees prior to them commencing employment. Under the Acts 'specified' information must also be disclosed by the organisations to the National Vetting Bureau, the HSE, Tusla, the Teaching Council and other relevant bodies. 'Specified information' is info which might reasonably give rise to a bona fide concern that the person may harm or attempt to harm a child or vulnerable adult.
Vetting is carried out by the National Vetting Bureau and it is a criminal offence for an organisation falling under the legislation to employ someone without having received the relevant vetting disclosure from the Bureau. The vetting disclosure will include particulars of the criminal record (if any) relating to the person and a statement of 'specified' information (if any) relating to the person or a statement that there is no criminal record or specified information in relation to the person. The Spent Convictions Act will intersect with the vetting legislation in that it won't apply where persons are working or carrying out an activity where a necessary or regular part means they have access to or contact with children or vulnerable adults. In these cases the Bureau will disclose all offences against the person and all serious convictions.
Employers who may be impacted by these acts should review their recruitment and vetting procedures to make sure they are compliant. Also any employees currently in a role that requires vetting under the new legislation will need to be retrospectively vetted as soon as possible. Data protection policies will also need to be reviewed to take account of the fact that sensitive personal data may be collected or disclosed to third parties.
For more information please contact our Employment Law team http://leman.ie/practices/employmentpensions/
“Society’s interests and those of the offender who mends his or her ways can coincide. It is in everyone’s interest that offenders who have paid their debt to society and want to leave crime behind are encouraged to do so. Insofar as this legislation can help, then it is to be welcomed by all.”