Matthew Holmes is a practising barrister and has written for the Irish Times, the Bar Review, and the Law Society Gazette, amongst other publications. He is the author of the Nutshells on Administrative Law, the Nutshells on EU law, and the forthcoming Nutshells on Evidence.
The vetting process for someone who is self-employed differs from the process of someone being vetted when they work for an organisation as an employee.
WHAT IS GARDA VETTING?
Garda vetting is the process where employers can get information from the Garda vetting database about their employees and prospective employees. Garda Vetting is carried out on anyone who is carrying out work or activity, which involves having access to, or contact with, children or vulnerable persons. Employers are provided information on previous convictions and, in certain cases, other specific information- such as ongoing investigations. This is done via a liaison person who must be nominated by every organisation. This is a relatively recent introduction to Irish law and is carried out under two acts- the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.
For the most part and for obvious reasons these acts concern themselves with organisations. In fact the words “Self-Employed” only appear once in the 2012 act and not at all in the 2015 or 2016 acts.
There are also separate requirements under the Children First Act 2015 that only apply to people providing services to children.
GARDA VETTING AND THE SELF-EMPLOYED
The rules for vetting of the self-employed can be found in subsection 13(3) of the 2012.
Under this subsection only organisations can apply for vetting of self-employed persons.
As a rule, self-employed people cannot seek Garda vetting of themselves.
Presumably this is because they A) know their own past and B) cannot be trusted to be impartial about themselves. If they were how would someone using their services know if, say, Garda vetting had revealed that the self-employed person had previous convictions for sex offences?
The situation may be different for another type of self-employed person who might not at first appear to be self-employed.
A self-employed person who runs their own organisation will be in a better position than other self-employed persons. Even though employ others they still employ themselves. They will be in more or less the same position as anyone else in the organisation as they can have a liaison person within their own organisation seek clearance from the Gardaí on them. The biggest difference is that, as the person in charge of the organisation, they are unlikely to fire themselves should Garda vetting turn up something nasty in their past. Set against this is the process of checks and balances in place of the process of appointing a liaison person, see here.
CHILDREN FIRST ACT
There is a separate requirement under the Children First act 2015 which may solve any difficulties caused by any potential loopholes. Unfortunately this only applies to children and not to vulnerable adults.
Under section 11 of this act anyone providing services to children has to provide a risk assessment statement. This involves assessing any risks and providing a statement on how they will try and protect children from this harm. Subsection 11(3) states:
A child safeguarding statement shall include a written assessment of the risk and, in that regard, specify the procedures that are in place—
(a) to manage any risk identified,
(b) in respect of any member of staff who is the subject of any investigation (howsoever described) in respect of any act, omission or circumstance in respect of a child availing of the relevant service,
(c) for the selection or recruitment of any person as a member of staff of the provider with regard to that person’s suitability to work with children,
This may include requiring systems in place for staff members who are a danger to children. This will include owners of companies and self-employed persons.
APPROACHES IN OTHER COUNTRIES
Ireland isn’t the only country which has this approach to vetting. The Police in New Zealand make it clear that they do not provide vetting to individuals. In the UK vetting was introduced in the aftermath of the Soham murders in 2002.
The Disclosure and Barring service (DBS) now vets people who work with children and vulnerable adults.
As with Ireland and New Zealand, in the UK self-employed people cannot get vetting of themselves.
Unlike Ireland and New Zealand the UK provides some justification for this - on the basis that the self-employed cannot ask cannot ask what’s known as an ‘exempted question’ of themselves.
Only Employers can ask ‘exempted questions’ - that is to seek a full criminal history of someone including their spent convictions.
Again this on its face does not seem a strong justification- there should be no reason why a self-employed person cannot have access to this information. They presumably would know most, if not all of it, already.
The DBS offers two options to the self-employed- the first is to ask an organisation to seek vetting. This is the same as in Ireland.
The other is to get a basic check from Disclosure Scotland- a Scottish government agency which provides information of unspent convictions for people living in the UK. It is hard to see why people would be allowed information of current convictions but would not be allowed have access to older, less relevant, spent convictions.
One of the inherent flaws with Garda vetting generally is that that there is nothing stopping employers from contracting out work to self-employed people after they have been vetted, even if vetting reveals a murky past.
This is a reflection of the bedrock principle that vetting comprises one - but only one - part of a safe recuruitment and selection process.
The same in fact applies to them employing anyone.
On the flipside, section 16(2)(a) and (b) of the vetting legislation (as substituted on 29th April 2016 by the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 s.22(a)-(c), SI No. 215 of 2016)) does require that all relevant organisations consider and take into account any criminal records information or specified information, when assessing the suitability of the person for the relevant role.
Failure to properly take into account a person’s criminal record, or specified information disclosed, would likely be taken to be a breach of the section 16(2) statutory duty.
The Minister for Justice Frances Fitzgerald was asked by Stephen Donnelly TD in early 2015 if she intended to widen the scope of Garda vetting to include the self-employed. She provided a written response which stated that it would not be extended (the response can be seen here).
The justification for this was because “It is not possible or feasible to extend the registration process to individuals as this would result in the vetting process being overwhelmed and consequent unacceptable delays in processing times.”
It should be pointed out that this response was given before the 2016 act was published and before the 2012 act was commenced. She pointed out that the self-employed can be vetted through organisations and recommended that the self-employed consult within their own profession “with a view to identifying the appropriate umbrella organisation to handle their application.”
Of course if vetting was brought in for self-employed people could the system trust them all to be honest when asking them for the result given?
Under the current system where vetting is handled by impartial organisations this is not a worry.
Under the current system if a self-employed person claims they have been vetted they can give the contact details of the organisation that vetted them and this can be confirmed with that organisation.
Changing this process might create a scenario where civilians may not be aware of the law on vetting and may be lied to by potentially dangerous individuals who claim that they vetted themselves. Unfortunately this danger would still exist if self-employed people could seek vetting.
There are some potential gaps in vetting when it comes to the self-employed. It is difficult to see how these gaps might be filled without introducing an American style system where criminal convictions are a matter of public record. On balance, the Irish vetting system strikes an appropriate mid-Atlantic balance.
This essay is for general information and guidance purposes only and, just to be clear, does not constitute legal or other professional advice.
You should always seek your own specific legal advice, from a firm of solicitors, on the application of the law in a situation.
Whilst we used reasonable endeavours to ensure the accuracy of this content, we do not accept any liability for any omissions or errors; or for any action taken in reliance of the information in this essay.