CIPD - Recruitment of people working with children and vulnerable adults

Recruitment and talent management

Originally issued in July 1999; latest revision November 2007

This factsheet gives introductory guidance. It:

provides an overview of the relevant legislation
deals with forthcoming changes in the law
makes suggestions for additional good practice in the recruitment process
includes the CIPD viewpoint.

Organisations, including businesses and not-for-profit organisations, need to ensure particular rigour and vigilance when recruiting people to work with children and vulnerable adults. ‘Children’ are defined as those under age 18; ‘vulnerable adults’ include the elderly, people with disabilities, people in residential accommodation or in custody and those receiving domiciliary care.

This area of recruitment practice is particularly difficult: it involves employees who are often paid little more than the National Minimum Wage, unpaid volunteers, areas of work with difficulties recruiting and hence a high reliance on migrant workers, all working in sectors where any abuse committed by a worker will attract extensive publicity, as well as legal liabilities for the employer.

The law in this area has often been introduced as a reaction to events and as a result is complex and lacks coherence.

This factsheet provides an outline of the legal position and guidance on appropriate, risk-based recruitment practice. It is not designed a substitute for specific legal advice.

The legal framework

In recent years, the government has taken steps to progressively tighten up the law in this area. As a result of devolution, there are differences between the laws that apply in England, Wales, Scotland and Northern Ireland, so this list should be treated as an overview only.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003

This overrules the employment rights an ex-offender would otherwise have in respect of spent convictions in order for employers to have additional information when recruiting for certain ‘exempted’ occupations. These include those that bring the job-holder into contact with vulnerable groups. Where the employer states clearly on the application form or at interview that the job applied for is exempted, ex-offenders will have to disclose information about spent as well as unspent convictions. For more information on employing ex-offenders, see our factsheet on this topic.

Go to our factsheet on Employing people with criminal records

Part V of the Police Act 1997

This Act created the Criminal Records Bureau (CRB) (in Scotland, the equivalent organisation is known as Disclosure Scotland) to help organisations in the public, private and voluntary sectors make safer recruitment decisions when identifying candidates undertaking certain work, particularly that involving work with children or vulnerable adults. When jobs meet the relevant criteria, organisations registered appropriately with the CRB can apply for criminal record checks (known as ‘disclosures’). See below for more information on disclosure.

The Protection of Children Act 1999, The Protection of Children (Scotland) Act 2003 and The Criminal Justice and Court Services Act 2000

The Protection of Children Act 1999 (PoCA) makes it an offence for any organisation to offer employment involving regular contact with children to anyone who has been convicted of certain specified offences, or is included on lists of people considered unsuitable for such work held by the Department for Education and Skills and the Department of Health. It is also an offence for people convicted of such offences to apply for work with children. Schedule four of the Criminal Justice and Court Services Act 2000 lists the offences that would automatically bar the offender from working with children. These include various kinds of violence and sexual offences.

Care Standards Act 2000 (England and Wales only)

As well as improving the quality of care services, this Act aims to protect vulnerable people who use these services. It creates a Protection of Vulnerable Adults (POVA) list, similar to the provisions for children. Individuals are included on the list if they have abused, neglected or otherwise harmed vulnerable adults whether or not in the course of employment; acting as a workforce ban. POVA checks are requested as appropriate from the Criminal Records Bureau.

The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003

This implements a similar scheme to the PoCA/POVA schemes which are in force in England and Wales.

Education Act 2002 (England and Wales only)

Under section 142 of the Education Act 2002, a person may be banned from working with children. Orders made under this act are contained in a CRB Disclosure.

Conduct of Employment Agencies and Employment Business Regulations 2003

This requires employment agencies to vet temporary staff who work with vulnerable groups such as children, the elderly and the infirm. They are required to carry out additional checks including obtaining copies of relevant qualifications, two references and taking all reasonable steps to confirm the individual’s suitability for the post. If new, adverse information later emerges, they must withdraw the temporary worker or inform the employer where the worker has been supplied on a permanent basis.

Recruitment and selection checks and procedures

Employers must structure and implement their recruitment and selection procedures to ensure that all legal requirements are met when seeking staff to work with children or vulnerable adults. At the same time, care must be taken not to unlawfully discriminate against candidates on grounds of race, sex, disability, religion or belief, sexual orientation or age, and to comply with data protection law. See our factsheet on recruitment for an overview of the process generally.

Go to our factsheet on Recruitment

When recruiting those working with children or vulnerable adults, the process should include selection followed by a strict verification and compliance process.

The selection process

When recruiting for any position, a thorough and objective selection process is essential. A combination of the following selection methods should be considered when filling these sensitive posts:

interviews
selection tests
psychological assessment
role-play.

The success of the selection process as a whole is greatly enhanced by having a valid contribution from each selection method.

For details on the selection process see our factsheets on Selecting candidates, Selection interviewing and Psychological testing.

Verification and compliance

Employers recruiting people to work with children or vulnerable adults should adopt a checklist to be applied following the selection process, without satisfactory completion of which a firm employment offer should not be made. The checklist should include:

Verification of identity.
Confirmation of the right to work in the UK.
Registration with the appropriate professional body (if applicable).
Verification of qualifications.
Criminal Records Bureau check.
POVA/PoCA check.
References.
Risk assessments (for example, when considering offering employment in cases where the CRB disclosure shows a conviction unrelated to abuse/violence).

Organisations need regularly to review their selection and recruitment, disciplinary and equal opportunity policies to achieve a sensible balance between the requirement to comply with anti-discrimination legislation and safeguarding vulnerable people from potential abusers.

Criminal record information

Information available from the CRB/Disclosure Scotland include ‘standard’ or ‘enhanced’ disclosures, where the job meets the relevant criteria.

Standard disclosure: This is appropriate for jobs that involve regular contact with children and vulnerable adults. It contains details of both spent and unspent convictions, as well as cautions, reprimands and final warning held on the Police National Computer. Lists held by government departments of those banned from working with vulnerable groups are also searched.
Enhanced disclosure: This applies to jobs involving greater contact with children or vulnerable adults (for example jobs involving caring for, supervising, training or being in sole charge of children or vulnerable adults). It contains the same information as standard disclosure but also include non-conviction information from local police records if thought to be relevant to the post applied for.

Adverse information contained in a CRB disclosure should not necessarily act as a bar to employment. The disclosure may contain details of spent convictions irrelevant to employment with children or vulnerable adults, and care must be taken not to treat an adverse entry on a CRB disclosure as an automatic bar to employment.

More information is given in our factsheets on Employing people with criminal records and Employing people with criminal records: risk assessment.

Reference checks

References must always be taken up to provide a check on the candidate's employment history, qualifications and experience. For further information see our factsheet on references.

Go to our factsheet on References

When recruiting staff through agencies, for example, nannies, nurses, care assistants, etc, always double check on their references and ensure they include a CRB disclosure request.

Forthcoming changes

The Safeguarding Vulnerable Groups Act 2006 and the Protection of Vulnerable Groups (Scotland) Act 2007 have been enacted as a result of failures identified by the Bichard Report following the murders of Jessica Chapman and Holly Wells (the ‘Soham murders’). The main failure identified was the absence of a single, comprehensive database containing all relevant data about individuals.

The Bichard Report made several recommendations, including:

the introduction of a national intelligence system, including the sharing of information
the introduction of a new system for registering those working with children and vulnerable adults
that the new register should be able to confirm that there is no known reason why an individual should not work with children or vulnerable adults.

The new laws will put the Bichard recommendations into practice.

The detail of how the Acts will be put into practice is currently subject to consultation, and the precise operation of the law may differ in Scotland from England and Wales. However, the main principles are the same. The following details concern the application of the law in England.

How the new law will work

The new law will work by creating two, linked, lists of people barred from working in ‘regulated activities’ with either young people or vulnerable adults.

Inclusion in the barred lists will be compulsory, with no right of appeal, for those convicted of certain serious offences.
Inclusion will be compulsory but subject to the right of appeal for those convicted of, or cautioned for, certain less serious offences.
Inclusion will be discretionary in other circumstances, even where no conviction has occurred.

The responsibility for taking all discretionary decisions relating to inclusion on the lists will be made by a new body called the Independent Safeguarding Authority (ISA). Any appeals will be made to the Care Standards Tribunal.

Regulated and controlled activities

‘Regulated activities’ include working either as an employee or a volunteer in certain activities involving either frequent or intensive or overnight contact with children or vulnerable adults. ‘Intensive’ contact means taking place on 3 or more days in 30.

Other activities in the care sector are classed as ‘controlled activities’. These are usually support roles such as cleaning. A person on the barred list may work in controlled activities subject to appropriate safeguards being in place. Clearly this will be an area where appropriate risk assessments by employers, coupled with close adherence to any guidance or best practice will be essential.

Offences and duties

It will be an offence for a person to work (either on a paid basis or as a volunteer) in a regulated activity while on the barred list. It will also be an offence for an employer to employ a person in a regulated activity without having checked his or her status.

The list will be updated continually, and employers will be notified of any changes in the status of their employees. At this point, it may be necessary to take steps to dismiss the employee.

Employers will be required to notify the ISA if an employee is dismissed or resigns in circumstances where abuse is suspected.

The impact of the new Europe

The comprehensive barring scheme being rolled out from the end of 2008 may be, to some extent, rendered ineffective as a result of the recent expansion of the European Union. Nationals of former Eastern European states, including Poland, Hungary, the Czech Republic and Slovakia, now have unrestricted rights to work in the UK and form an increasingly large part of the workforce in care activities. Currently, there are no formal procedures to require notification or registration of matters occurring in their home countries that would have required reference to the ISA if they had taken place in the UK.

CIPD viewpoint

Those already involved in abuse, or those disposed to do so, are extremely difficult to identify. All employers should do their utmost, through good practice and vigilance, to make it as difficult as possible for abusers to obtain access to vulnerable people.

The principal message that must be acted upon by everyone responsible for the recruitment of people working with vulnerable people is that consistency, rigour and thoroughness in applying the checks and procedures, each and every time, is paramount. Employers must ask demanding, probing and difficult questions of applicants. Lack of time, resources or money must not tempt employers into circumventing best possible practice in recruitment and selection. The principles set out in our general guidance on recruitment apply to the recruitment of all types of employee to ensure employers have the best chance of securing the right person for a job.

Recruitment of people working with children and vulnerable adults