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Chapter 7: The legislative context
While there was not a specific question on the legislative context of the proposals outlined in the consultation document, a number of individuals participating in the various strands of the consultation commented on the need for any new legislation to fit with existing employment legislation and human rights legislation. This chapter outlines the issues raised.
7.1 Employment legislation
Many respondents attending focus groups and information events commented on the ever increasing complexity of existing employment legislation and the impact that the Bichard recommendations may have on this. For example, 9 consultees commenting at question 3 of the consultation (interests of vulnerable groups), noted simply that employment policies and rights of employees were a concern, another 16 noted legal issues and 5 were concerned about insurance matters.
"There is concern that the employers may face new legal challenges - for example, if they decline, on the basis of the vetting and barring disclosure - to employ someone who has been "passed" by the Central Barring Unit. There may also be insurance implications around such decisions for employers."
(Voluntary)
Twelve consultees commenting on proposal 17 (information released to applicant by Central Barring Unit) specifically, voiced concern over employers basing decisions on information withheld from applicants. They questioned whether this could lead to the applicant taking legal action and felt that employers should be advised on what information has been withheld from the applicant. Six consultees at proposal 15 (appeals against listing) mentioned other legislation including employment law.
Commenting on proposals 24-25 (referrals of new incidents and retrospective referrals of incidents), 2 consultees were concerned that employers might avoid making referrals through fear of this leading to an employment tribunal.
Similarly, respondents attending focus groups and information events also noted that there is sometimes a contradiction between what is being suggested by the proposals and current recruitment practices and employment regulations. Some respondents working within the social care sector referred specifically to regulations imposed by regulatory bodies such as the Care Commission.
For example, the consultation proposes that "provisional listing means that the individual can continue to work whilst the determination is made (proposal 14)". However, some respondents noted that an employee would automatically be suspended in given circumstances and others noted that provisional listing would not be possible in instances where supervision or safeguards were not available for an employee who was provisionally listed. Many of these respondents, while disliking the concept of "guilty until proven innocent", felt that the priority should be the child or adult at risk and that any allegation should result in suspension while provisionally listed.
In line with this, there were concerns that some employers would have difficulties in implementation of recommendations because of such constraints.
As such, a number of those attending focus groups and information events called for any new legislation on a vetting and barring scheme to take into account current employment law and to ensure there are no contradictions between disclosure and other legislation.
Some respondents attending focus groups also commented that while all employers should have robust recruitment policies in place that can sit alongside any other legislation, some (and often smaller) employer organisations do not fully understand current employment or have sensible recruitment policies in place. Many noted that it is foolish to place too much importance on disclosure at the expense of other necessary recruitment practices.
7.2 Human rights legislation
Commenting at question 2 (Bichard recommendations), 5 consultees noted the need to work within Human Rights legislation and one also commented "As specific criteria have not been identified it is difficult to comment on potential for this legislation to come up against ECHR." (Individual ) Seven consultees commenting on proposals 11-13 (Central Barring Unit), cited the need for any new agency to comply with any human rights legislation. Three consultees commenting on proposal 15 (appeals against listing) mentioned human rights legislation specifically.
7.3 The legislative impact
Having noted the importance of any new legislation sitting within the framework of other UK employment and / or human rights legislation, some consultees (commenting at question 3 - interests of vulnerable groups), specifically mentioned discrimination, or the fear of discrimination, due to information contained in disclosures. However, 17 consultees mentioned the need for fair treatment or procedures which should mitigate the possibility of any discrimination. As one Voluntary Organisation commented "Put another way - child protection checks should be slick, timeous and seen to be utterly without fault."
At question 5 (interests of applicants), concerns over civil liberties, human rights or personal privacy of individuals was voiced by 15 consultees, with 12 commenting that applicants must be told what information is being held about them and whether they are included on any barring lists.
Five consultees at question 4 (interests of employers) worried about over-reliance on the checks or on the accuracy of checks. While some qualitative respondents noted that this could be mitigated by consistent, robust HR practices, there were concerns that some employers do not have these in place and fail to recognise the importance of having robust recruitment policies. Twelve consultees also felt these should be in place; "We would like to see the emphasis placed on organisations having robust recruitment policies and procedures in order to get the best person for the job as opposed to anyone without a conviction or someone who just hasn't been caught yet!" (Other). In addition, 11 consultees welcomed the introduction of a system that could provide up to date information.
In summary,
There were calls for employment law and human rights law to be taken into account by this new legislation. There were also preferences for this to sit alongside recruitment practices.
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