Will employers become overly risk averse? For example, what would happen if someone has a driving conviction on their scheme record?
What powers will the courts have to make referrals to the PVG Scheme?
Why do employers and employment businesses/agencies have a duty to make referrals to the PVG Scheme?
Will employers become overly risk averse? For example, what would happen if someone has a driving conviction on their scheme record?
The purpose of the PVG Scheme is to keep those who might harm vulnerable groups out of the regulated workforce. It provides an enhanced tool to help employers make safe and balanced recruitment decisions and therefore help them to minimise any risk to children or protected adults. Employers can have confidence that if a person is a member of the PVG Scheme they are not unsuitable to work in that workforce. Hopefully that will make them less risk averse in deciding whether the individual is suitable for a particular post. However, the final decision about suitability must sit with employers who are best placed to decide whether a particular individual is suitable to carry out the day to day requirements of the role. For example, a driving conviction on its own would be not lead to a person being considered unsuitable for regulated work. However it may make a person unsuitable for a particular post that involves driving.
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What powers will the courts have to make referrals to the PVG Scheme?
After the PVG scheme goes live there will be three categories of court referral:
1. Automatic listing offences
An individual who is convicted of an automatic listing offence will be listed by Disclosure Scotland on either, or both, lists, without any further consideration of the case. Automatic listing will only apply to the most serious offences, conviction of which indicates unambiguous unsuitability to work with vulnerable groups.
2. Automatic consideration for listing offences (children's list only)
Courts must refer individuals convicted of an offence which is listed in Schedule 1 of the PVG Act. On receipt of the referral, Disclosure Scotland will place the individual under consideration for listing on the children's list. A full assessment will be carried out before a final decision is made and the individual will have the opportunity to make representations to Disclosure Scotland and to see all of the information on which a decision will be made. If there is information to suggest the individual does, has done, or is likely to do regulated work with adults, they may also be considered for the adults' list too. Disclosure Scotland will have powers to request additional information from the courts following a conviction in order to inform their decision.
3. Discretionary referrals
The courts also have a discretionary power to refer an individual convicted of any other offence where they consider it may be appropriate to list the individual on either, or both, lists. For example, an individual who is convicted for stealing money from an elderly person. In these cases, it will be for Disclosure Scotland to decide whether it is appropriate to place the individual under consideration for listing and to gather information to inform a decision on listing, including the individual's representations.
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Why do employers and employment businesses/agencies have a duty to make referrals to the PVG Scheme?
One of the key aims of the PVG Scheme is to help to ensure that those who have regular contact with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour. It seeks to remove opportunities for those who may be unsuitable from moving undetected within, or across, the workforce.
Harmful behaviour is not restricted to unlawful criminal conduct. It includes other forms of conduct which may not be recognised as a criminal offence but nonetheless might result in harm, or risk of harm, to vulnerable groups such as the inappropriate use of restraint or inappropriate relationships with clients. Employers are often best place to spot harmful behaviour. In fact the majority of referrals to the existing Disqualified from Working with Children List have been made directly by employers.
Where an employer takes disciplinary action to remove an individual from regulated work as a result of harmful behaviour towards a vulnerable person, then they have a duty to refer the individual to the PVG Scheme so that consideration can be given to whether that individual should be barred from any kind of regulated work with vulnerable groups. Without this duty there would be no way of preventing individuals moving undetected to other organisations where they may continue to pose a risk. A full assessment will be undertaken on referrals before a listing decision is made. Both the individual and the referring organisation will have the opportunity to make representations to Disclosure Scotland.
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