Who blacklists the blacklisters?

May 11th, 2009 by Timothy Pitt-Payne QC

In March this year the Information Commissioner took enforcement action against the Consulting Association, which had been operating a secret blacklist of employees in the construction industry, including details of trade union activity.  Today the Department for Business, Enterprise and Regulatory Reform has announced that new regulations will be introduced to outlaw the use of blacklists in this way.  There is a power to regulate under section 3 of the Employment Relations Act 1999, but so far it has never been used.  A consultation exercise is promised for early summer.  Draft regulations were previously prepared in 2003, and there was full consultation; so this time round the consultation will be shorter than the normal 12 week period.

It is very interesting to see such a direct link between action by the ICO, and new regulations.  The Government line had previously been that there was no evidence that regulations were needed.  The ICO has now provided them with their missing evidence.

Blacklists have a long history.  The Economic League attracted controversy in the 1980s (and was eventually disbanded in 1994); apparently it had a list of 22,000 political subversives, including one Gordon Brown MP.

Employment vetting is much in the news at present and is clearly attracting great interest.  We are currently considering an exciting project in this area:  watch this space!

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Recent conference papers

April 30th, 2009 by Timothy Pitt-Payne QC

On 11 KBW’s main website, you can now find some conference papers delivered this month by members of chambers.

There’s a paper that I gave at a Northumbria University conference.  The theme of the conference was information sharing; my paper is about the new law on breach of confidence (post-Campbell v MGN).

Yesterday, the LGG/11KBW legal update conference took place, with about 115 delegates.  Karen Steyn gave a paper on recent case-law affecting local authorities; the first section is about information law.  I gave a paper about employment vetting.  In discussion, delegates were clearly very interested in getting to grips with the new ISA barring regime.  Questions were raised about its implications for elected members of local authorities, and for volunteers (e.g. parents helping out in schools).  

Another subject  raised in discussion was the recent decision of the Administrative Court in R(G) v Governors of X School and Y City Council.  A music assistant employed at a primary school was dismissed; the allegation was that he had formed an inappropriate relationship with a 15 year old boy who was on work experience at the school.  The school’s disciplinary committee told the employee that they would be reporting the case to the Secretary of State for potential inclusion in “list 99” (i.e. the statutory list of those banned from working in schools).  The Court quashed the decision because the school had refused to allow legal representation at the dismissal hearing or at a forthcoming appeal.  The disciplinary proceedings, and the referral to the Secretary of State for a potential banning direction, formed part of one and the same proceedings.  Those proceedings were not criminal in nature for the purpose of article 6 of the Convention.  However, their potential consequences were grave; and procedural fairness required the claimant to be allowed legal representation, before both the school’s disciplinary committee and its appeal committee.

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Employment vetting in the news

April 24th, 2009 by Timothy Pitt-Payne QC

There’s an employment law supplement in the latest Legal Week, and I have an article about employment vetting. 

At the end of the article there’s a short discussion of something I’ve written about previously on this blog; the amount of personal information that’s now put on the internet, and its implications for recruitment. Looking at the way the article is presented, it’s clear that the editorial team thought that this was the interesting bit of the article.

I’ll be speaking about employment vetting again next week, at the Local Government Group conference on 29th April.   This event is a wide-ranging legal update for local authority lawyers – it’s a joint event between LGG and 11KBW.  If you’re coming to the conference, do come and introduce yourself and let me know what you think of the blog.

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A suitable case for recruitment

April 4th, 2009 by Timothy Pitt-Payne QC

 Information law overlaps with employment law in two main ways, in relation to employment vetting and employment monitoring. Broadly speaking vetting is about the enquiries that an employer can make before recruitment, and monitoring is about checking on the performance and behavior of existing employees.

 
The legal framework for employment vetting is changing radically, as the Safeguarding Vulnerable Groups Act 2006 is brought into force. The Act implements the Bichard Report, which followed an inquiry into the notorious 2002 Soham murders. It establishes a new vetting and barring scheme for those working with children or vulnerable adults, to be operated by a statutory body called the Independent Safeguarding Authority (ISA).

 
With effect from 20th January 2009, the ISA was given responsibility for decision-making under the 3 existing employment barring lists: the education list, (popularly known as “List 99”), the PoCA list (for those working with children) and the PoVa list (for those working with vulnerable adults). As from 12th October 2009 these 3 lists will be replaced by two new lists introduced by section 2 of the 2006 Act and maintained by the ISA –  the children’s barred list and the adults’ barred list.  Employers, social services and professional regulators will have a duty to share information with the ISA. From July 2010, new entrants to roles working with vulnerable groups and those switching jobs within the sector will be able to register with the ISA, and employers will be able to check registration status online. The legal requirement for new entrants and those moving jobs to register with the ISA, and for employers to check on their status, will come into force by November 2010. The intention is to bring the whole of the existing workforce into the scheme by 2015.

 
I will be delivering a paper about employment vetting at the Local Government Group conference on 29th April, and the paper will be available on 11KBW’s website after the conference.  For consideration of whether the existing PoVA list is compatible with articles 6 and 8 of the European Convention on Human Rights, see R (ota Wright) v Secretary of State [2009] UKHL 3.  For the timetable for implementing the 2006 Act, see here and here.

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