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Law Society Gazette | gazette.ie Jan/Feb 2017
EMPLOYEE VETTING
43
This case drew on the 2014 Supreme Court
decision in R(T) v Chief Constable of Greater
Manchester Police, where the disclosure of
cautions and warnings was found to fall foul of
MM. The English vetting system had had to be
changed in the aftermath of that decision, and
this case dealt with the new system.
Lord Justice McCombe found in P&A that
the test would be whether the statute requires
the provision to set out adequate safeguards
that would enable the proportionality of the
interference to be adequately examined, as
well as protecting against arbitrariness. He also
went on to hold that there was no reason why
a second conviction would require an entire
lifetime of disclosure of those convictions
and that there was no “rational relationship”
with the objectives of the legislation, namely
rehabilitation.
All things bright and beautiful
It should be noted that there is nothing
stopping employers from employing people
after they have been vetted, even if they have
previous convictions. Potential employees may
have a reasonable explanation or be able to
show they have changed. However, it is safe
to assume that, in many cases, this disclosure
will cause employers to reject employees with
a chequered past. The Irish Times reported on
11 January that over 32,000 teachers will have
to be vetted this year under this legislation and
will face fitness-to-practise inquiries if vetting
reveals a risk to children or vulnerable adults.
The Irish legislation contains safeguards
that meet many of the concerns raised in the
English case law. The nature of the offence is
taken into account, as well as the time passed
since conviction. There are tighter restrictions
on the disclosure of specified information and
there is an appeals mechanism. These may still
be criticised – for example, there is no reason
why a minor matter dealt with by a small
fine in the Circuit Court would have to be
disclosed, while another case that got up to a
year’s custody in the District Court would not.
The fact that multiple convictions would
have to be disclosed was criticised in P&A.
An offender might go through a period of
offending before turning their life around, but
the legislation does not reflect this. Overall,
however, these acts do a good job of balancing
rights against the public interest.
LOOK IT UP
CASES:
n MM v the United Kingdom (2013,
app no 24029/07)
n P&A v Secretary for State [2016]
EWHC 89 (Admin)
n R(T) v Chief Constable of Greater
Manchester Police [2014] UKSC 35
LEGISLATION:
n Criminal Justice (Spent Convictions
and Certain Disclosures) Act 2016
n European Convention on Human
Rights
n National Vetting Bureau (Children
and Vulnerable Persons) Database
System Act 2012
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