knowledge | 25 May 2016 |
Legislation on Spent Convictions and Vetting is Commenced
The Minister for Justice and Equality, Frances Fitzgerald TD has signed commencement orders for both the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, with effect from 29 April 2016.
Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016
The rationale behind this Act is to remove barriers to employment, education, housing and insurance for people who committed a minor offence in their past and now want to move on with their lives. Under this Act, certain minor convictions will become “spent” and will no longer need to be declared. A conviction will be regarded as “spent” if not less than 7 years have passed since the date of conviction, the individual has complied with any sentence imposed and the sentence imposed by the Court in respect of the conviction was not an “excluded sentence”.
A person with a spent conviction will not be required by law or by the provisions of any agreement to disclose that conviction or the circumstances surrounding it. However this Act cannot be relied upon by individuals who have committed more than one offence.
An individual may now not generally be obliged to disclose a spent conviction in the course of applying for a job, or where successful in obtaining employment and must not be prejudiced in law for briefing not disclosing a spent conviction. This restriction does not apply in respect of those in certain limited State employers, or in modified terms, to those working with children or vulnerable adults.
National Vetting Bureau (Children and Vulnerable Persons) Act 2012
The long-awaited commencement of The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 provides a legislative basis for vetting by the National Vetting Bureau people who seek positions of employment involving children or vulnerable people. Access to vetting by the National Vetting Bureau is limited to these relevant organisations.
Furthermore, this Act also places positive obligations on certain ‘relevant organisations’ who work with children and vulnerable adults which include obligations to register and to ensure appropriate vetting. The McCann FitzGerald Employment Group prepared a more detailed briefing on the impact of this Act a number of years ago, when its commencement was then expected.
What does this mean for employers?
The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 will, in particular, have an immediate impact for employers who use a ‘self-declaration’ process as part of their pre-employment screening process. This was a process that was often used by employers following the prohibition against enforced subject access requests brought in in 2014.
The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 also places positive obligations on organisations working with children and vulnerable adults to put in place appropriate process to ensure appropriate vetting of those engaged (not just employed), not only on commencement but, also, while the obligation to ensure vetting generally commences from commencement there is the potential retrospective vetting or for re-vetting in certain circumstances.
In practical terms, the combined impact of the commencement of these Acts will continue to make it more difficult for private sector commercial employers, in particular, to carry out criminal background checks for their employees. Data protection principles as well as employment law and employment equality concerns will always have to be considered by prospective employers before such checks could be considered and would limit their application. However, even if employers can satisfy themselves that they can address these concerns, recent legislative changes will also make conducting such checks far more difficult from a practical perspective, and this is likely to impact on employers’ pre-hiring processes.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.