The First Line of Defence – The National Vetting Bureau and the Use of Joint Agreements
The National Vetting Bureau (“the NVB”) announced that a new compliance unit was set up in December last year to conduct “regular checks” on organisations to ensure they are compliant in this area. As a result, organisations need to be pro-active in ensuring that they are complying with the requirements under the relevant vetting legislation, the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 (“the Acts”).
Described as the “first line of defence in keeping children and vulnerable people safe”, the Acts place an obligation on the “relevant organisation” to ensure that any person who undertakes “relevant work or activities” has been vetted.
Where a one relevant organisation enters into an arrangement with another relevant organisation for a person to undertake relevant work or activity, a vetting obligation under the Vetting Act arises for both entities involved. However, provided that the other relevant organisation involved in the arrangement has obtained a disclosure from the NVB in respect of the employment, contract, permission or placement of the person concerned, the first relevant organisation may decide to enter into an agreement with the other relevant organisation concerned in accordance with Section 12(3A) of the Acts. While the Irish vetting system has been modernised in recent years and e-Vetting is now available to all registered organisations, the use of such agreements reduces the need for multiple vetting applications.
This Insight will examine this Section of the Acts in more detail.
Section 12(3) (A) of the Acts provides for a defence to any proceedings against a “relevant organisation” where they can show that that they have a written agreement in place with another relevant organisation which provides that they have carried out the vetting on behalf of both organisations. The Section sets out certain preconditions as follows:
- that there is a joint agreement in writing,
- between two or more relevant organisations,
- agreeing to the employment, contracting, permitting or placement of a particular person to undertake relevant work or activity,
- and where the other relevant organisation received a vetting disclosure from the Bureau in respect of the employment, contracting, permitting or placement of the person concerned.
This section envisages situations where a written agreement is in place between two entities which allows one organisation to obtain a Vetting Disclosure in relation to a particular employee/volunteer/relevant worker. Joint Agreements can be standalone agreements or part of a wider service agreement between two entities.
Examples of the types of situations in which Joint Agreements may be useful are as follows;
- Sports clubs supplying volunteers to schools;
- Agencies suppling staff and any outsourced facilities;
- Universities supplying students on placements;
- Group employers working with vulnerable adults, such as nursing homes, sharing staff between nursing homes in the same Group.
The Joint Agreement would allow the worker to move from one organisation, who is a party to the Joint Agreement, to another organisation, who is also a party, to carry out relevant work without the need to be re-vetted by the second organisation. The role being carried out, for which vetting has been completed, needs to be the same in each organisation.
It is important to note that this section only provides a defence and does not absolve an organisation of their own obligations under the Acts. Penalties under the Acts include fines of up to €10,000 and five years’ imprisonment.
A Joint Agreement should state that the agreement is being made to comply with the requirements of the Acts and should ensure that a valid Disclosure is received for each individual before they commence the relevant work. Relevant organisations should ensure that employees also complete a consent form whereby they agree to the sharing of the Disclosure between the parties. The agreement should outline how the organisations should approach re-vetting and an individual’s obligations to report changes in criminal record, case pending or specified information, as provided for in the Acts.
In terms of assessing the Disclosure, each relevant organisation will have developed its own vetting policy as to what is acceptable. Where a conflict arises between the vetting policies of each of the parties, the agreement should clearly set out which policy is to take precedence. Suitable indemnity clauses may also be inserted into the agreement to address any liability which may arise under the Acts.
The use of such a Joint Agreement may be practical and extremely beneficial, avoiding the need to have individuals vetted several times. As outlined above, it is crucial to note that the legislation states that these types of agreements only provide a defence and do not absolve parties of their responsibilities under the Acts.
Our Employment Team at Ronan Daly Jermyn will be very happy to advise further on the use of Joint Agreements and the drafting of such agreements.
For more information on the content of this insight please contact:
Jennifer Cashman, Partner, firstname.lastname@example.org, +353 21 4802708
Ciara Ní Longaigh, Solicitor, email@example.com, +353 21 4802727