Chapter 5: Sharing disclosure records
5.1 - Permissions and prohibitions
1. A Scheme Record or Scheme Record Update is sent to the registered body which countersigned the application (the employer or umbrella body) and a copy of the disclosure is sent to the individual. A copy of a Scheme Record may be sent to the GTCS or SSSC in certain circumstances 52. A Scheme Membership Statement is sent to the individual and to the personal employer, where they countersigned such an application. The PVG Act creates a series of offences around the inappropriate handling of disclosure information designed to protect the individual from unfair discrimination; these offences apply to all three types of disclosure record.
2. Section 66 makes it an offence for anybody to share somebody else's disclosure records in order to ensure that the sensitive information is not shared unnecessarily. But see paragraph 3 below.
Lawful sharing within an organisation
3. It may be necessary to share the disclosure record with other employees, members and office holders within an organisation or where the disclosure has been requested on somebody else's behalf, and this is allowed. Section 68 makes clear that the record should only be shared for the purposes of enabling the employer to determine suitability for regulated work. This is an important safeguard to ensure that employers only share disclosure information for legitimate purposes.
Lawful sharing by a PVG Scheme member
4. A PVG Scheme member may share their own disclosure record. So, for example, a Scheme Membership Statement obtained by a PVG Scheme member in respect of one personal employer may be shown by that individual to other personal employers. For example, a private dance teacher who is teaching a class of 20 children each Wednesday evening might be asked to obtain a Scheme Membership Statement by one of the parents. There is nothing to prevent that dance teacher showing the Scheme Membership Statement to every parent; there is no requirement to generate 20 Scheme Membership Statements, one for each parent, although this would be permitted (but would require 20 applications and 20 payments of fee).
Unlawful requests for disclosure records - by employers
5. Section 67 makes it an offence for anyone to attempt to see a disclosure record, or to use such a record other than for the purpose of checking an individual's suitability to do regulated work 53. It is an offence for employers who cannot legitimately ask for a disclosure record because they are not engaged in regulated work from requiring an individual to share the information on the record. For example, it would normally be an offence for a garage owner to ask mechanics in his garage if he could see their disclosure records, if they had obtained them for other purposes, since car repair work is not (normally) regulated work.
Unlawful requests for disclosure records - by third parties
6. Section 67 also makes it an offence for anyone other than an employer (a third party) to request provision of, or to otherwise seek sight of, a disclosure record other than in prescribed circumstances. In these circumstances, a third party may ask to see a disclosure record to enable them to assess the suitability of the individual to do regulated work in pursuance of an arrangement under which services are provided to that third party. The rest of this chapter describes the circumstances in which third parties can ask for sight of a disclosure record.
5.2 - Third party access for commissioners of transport services
7. Individuals who are members of the PVG Scheme, or who are asked to join it because they will be doing regulated work, may sometimes be asked to allow someone other than their employer to see their disclosure record. In general, to make such a request is not allowed. However, an exception is made where organisations that provide education or health services are contracting with a third party organisation to provide transport services to children or protected adults. The detailed provisions are set out in regulations 54 but the four elements required for a valid request are summarised at paragraphs 8 to 11 below:
Eligible transport services
8. Transport services for which requests are permitted are those involving the transport of children or protected adults to and from:
- schools or other educational establishments; or
- hospitals, independent hospitals, private psychiatric hospitals, independent clinics or independent medical agencies.
Eligible commissioning organisations
9. Only councils, schools, educational establishments, health bodies or independent health care services have the power to make this request and only in respect of eligible transport services (paragraph 8) they have commissioned.
10. An organisation, the contractor, must have entered into arrangements with an eligible commissioning organisation (paragraph 9) to provide eligible transport services (paragraph 8).
11. Requests can only be made in respect of employees of eligible contractors (paragraph 10) who are doing regulated work. That is to say, this exception does not itself in any way extend the scope of regulated work.
Employees' consent or otherwise to the request
12. The contractor can only show the disclosure record to the commissioning organisation if the employee concerned has given their consent in writing to the contractor. The consent should be given freely and not under duress. The contractor should keep a copy of this written consent. Disclosure Scotland is not involved in this arrangement.
13. The contractor must make clear to the employee that, if they give their consent, the commissioning organisation will have an opportunity to give their opinion on whether the employee is suitable to be used for the transport service contract.
14. Without consent, the commissioning organisation will have to make a decision about contract award or execution on the basis of other information provided by the contractor. That could include an assurance by the contractor that they are content that the staff who will provide the services under the contract are suitable to do so. But it will always be for the commissioning organisation to decide if that assurance from a contractor is acceptable to it.
Arrangements for sharing the disclosure record
15. Any disclosure record application will be countersigned by the contractor, who is their employer or potential employer, as normal. The commissioning organisation offering the transport contract plays no part in the request and does not receive a copy of any disclosure record direct from Disclosure Scotland. The employer must make appropriate arrangements to allow the commissioning organisation to see the disclosure record, bearing in mind the sensitive nature of the disclosure and the very tight legal restrictions the PVG Act places on who is allowed to see it.
16. The commissioning organisation is not allowed to make or keep a copy of the certificate and must return the disclosure record as soon as the relevant decision is made.
Bus driver example
17. Consider, for example, a bus driver employed by a bus company (the contractor) contracted to transport children to school for a council (the commissioning organisation). A bus driver whose normal duties include transporting children to and from school unaccompanied by a responsible person, would normally be doing regulated work with children (being in sole charge of children). The bus company is employing drivers to do regulated work with children and would be expected to ask for Scheme Records / Scheme Record Updates. The bus company needs to fulfil its legal obligation not to employ a barred individual but would also be interested in any driving convictions on the Scheme Record. However, the council also has an interest in ensuring that the driver is suitable for this type of position because of its responsibilities towards children in its schools. The council may ask to see the bus driver's Scheme Record / Scheme Record Update without committing an offence, although the request can be refused by the bus driver. However, the council could then require that the bus driver is not used for its bus contract.
Case Study C5.1
A. Mike owns four minibuses and employs four people - Alice, Brian, Colin and Derek - to drive them for him. All the vehicles and drivers are licensed for minicab operations and Mike also has several contracts to provide transport services for local hotels and guest houses.
B. Mike's company has just been awarded the contract to provide the local Council's school bus service to a small rural primary school.
C. The Council wishes to see disclosure information for all four of Mike's drivers, as Mike proposes that any of them might be given the school bus duty from day to day. Mike is also aware that as his drivers will now be responsible for a bus-load of children, they will be doing regulated work with children and he should ask them to become PVG Scheme members.
D. Alice, Brian, Colin and Derek complete their applications for PVG Scheme membership and Mike countersigns their application forms. He also gets their written consent from Alice, Brian and Colin for the Council to see their disclosure, which he keeps on their personal files. Mike must not pass on any information he sees on a disclosure record to a third party without the consent of the subject of the disclosure record. If he does, he will have committed an offence.
E. Disclosure Scotland sends each applicant a copy of their Scheme Record, and Mike receives four Scheme Records, one for each of his drivers. Mike arranges for the Council to see the disclosures of Alice, Brian and Colin.
F. Alice has a completely clear disclosure, no vetting information appears on it. Brian's disclosure reveals a fine for a breach of the peace eight years ago and Colin's disclosure contains details of an assault conviction that he received 12 years ago. The Council tells Mike that it is happy for Brian to drive the school minibus as the conviction is very minor, but it is not happy for Colin to do any driving on its behalf. Mike, on the other hand, is satisfied that Colin's employment record with him has always been good, so he is happy to continue to employ him on other company duties, but he agrees with the Council not to provide Colin as a school minibus driver.
G. When Mike asks Derek to hand in his completed application, Derek says he will do so, but he is unwilling to give permission for the Council to see the disclosure. Derek does not need to give any reason for not giving permission. As a result, the Council says it is not happy for Derek to run the school minibus. Mike, however, is happy with Derek's employment record and allows him to continue working on other company duties without a disclosure. Derek, however, cannot run the school minibus service.
H. It would be appropriate for Mike to discuss the consequence of refusal with Derek, and that might include covering the reason why Derek is refusing. It would not be appropriate for him to discuss the issue with the commissioning organisation. Issues about employment law that are beyond the scope of this guidance could arise if Mike cannot accept Derek's approach.
Case study C5.2
Dance teacher in a council-owned venue
A. Gary hires a hall from his local council for the purpose of providing dance classes to teenagers on Thursday nights. Gary signs a contract with the council for venue hire.
B. Gary is doing a regulated work (teaching children). However, he is not doing regulated work for the council, nor is he providing them with a service. The council cannot ask him for a disclosure record nor countersign a disclosure application to this effect. Nor can the council ask for sight of any disclosure record he may have obtained otherwise ( e.g. a Scheme Membership Statement that Gary may have obtained). However, parents leaving their child with Gary for lessons would be entitled to ask for, or to see, a Scheme Membership Statement.
C. The council may wish to make clear that the hiring of its venues does not mean that they endorse the individual's suitability or otherwise to work with vulnerable groups, in the same way as they are not endorsing their professional competence ( e.g. as a dance teacher).