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Protection of Vulnerable Groups and Criminal Records Check Policy and Guidance

  1. Policy Statement
  2. Scope and Purpose
  3. Introduction to the Protection of Vulnerable Groups (Scotland) Act 2007
  4. Definition of Children and Protected Adults
  5. Regulated Work
  6. How to assess whether the work is regulated 
  7. Regulated Work and University Posts
  8. Work in Schools
  9. Research Issues
  10. Summer Schools
  11. Students
  12. Existing Staff
  13. PVG Scheme Records
  14. Fees
  15. Sharing Disclosure/Scheme Records
  16. Referrals by Organisations
  17. Recruitment of Ex-Offenders
  18. Procedure for Recruitment and Selection of University Staff
  19. Other Types of Checks
  20. Handling, Holding and Destroying Scheme Record/Disclosure Information
  21. Policy Review

1. Policy Statement

The University is committed to providing a safe and protected environment for its staff and students at all times and therefore we will fully comply with the relevant legislation and statutory guidance to ensure that, where appropriate, applicants for vacancies and employees are members of the Protection of Vulnerable Groups Scheme (PVG Scheme) which has been introduced by the Protection of Vulnerable Groups (Scotland) Act 2007 (the 2007 Act).

The University is committed to equality of opportunity for all and to providing an environment that is free from unfair and unlawful discrimination.

2. Scope and Purpose

Staff who carry out regulated work with children and/or regulated work with a protected adult under the 2007 Act are required to be members of the PVG Scheme. This is to ensure that they are not currently barred from carrying out work with children or protected adults or become barred in the future whilst still in our employment.

Initially, this will relate only to new staff to the University or staff transferring internally into regulated work. However, over a period of approximately 4 years all existing staff in posts that are deemed to fall into the scope of ‘regulated work’ will have to become PVG Scheme members.

This policy provides a list of positions that the University already deems to be regulated work, however it is hoped that the guidance provided here will enable staff to assess whether any other positions/research projects etc. that come up require membership of the PVG Scheme. If in doubt, Human Resources can be contacted for advice.

3. Introduction to the Protection of Vulnerable Groups (Scotland) Act 2007

The PVG Scheme replaces enhanced disclosure for individuals working with vulnerable groups i.e. children and protected adults. It went live on 28 February 2011.

The PVG Act introduces a new concept of ‘regulated work’. Regulated work with children supersedes the definition of childcare position in the Protection of Children (Scotland) Act 2003 and regulated work with adults supersedes contact with an adult at risk.

The PVG Act replaces the Disqualified from Working with Children List with the PVG children’s list. It also establishes, for the first time in Scotland, a list for those who are unsuitable to do regulated work with adults.

It introduces the concept of retrospective checking which is the process for managing how individuals already doing regulated work when the PVG Scheme goes live should be brought into the Scheme.

The PVG Scheme is still managed and delivered by Disclosure Scotland as an executive agency of the Scottish Government. The Protection Unit within Disclosure Scotland receives and considers referrals and takes decisions, on behalf of Scottish Ministers, about those people who may be unsuitable to work with children or protected adults.

The new Scheme offers continuous updating. Disclosure Scotland continue to collect vetting information about an individual after the initial disclosure check has been made so that new information indicating that they might be unsuitable can be acted upon. The University as an employer and registered body will be kept informed if any employee, who is a member of the scheme, becomes unsuitable for work with vulnerable groups.

An individual who is doing regulated work when barred is committing an offence from the date the scheme went live. It is also an offence for an organisation to recruit a barred individual to do regulated work.

4. Definition of Children and Protected Adults

  1. A child is defined as an individual under 18 years of age

    A protected adult is defined as an individual aged 16 or over who is provided with (and thus receives) a type of care, support or welfare service. Protected adult is a service based definition and avoids labelling adults on the basis of their having a specific condition or disability.

  2. There are four categories of services, receipt of any one of which makes an individual a protected adult:
    • Registered care services
    • Health services
    • Community care services
    • Welfare services
  3. Welfare services is the category that is most relevant to the University as this can be applied to e.g. Student Services. Welfare services are defined as follows:
    A welfare service includes any service which provides support, assistance, advice or counselling to individuals with particular needs meeting the following conditions. The service must be a service that:
    1. is provided in the course of work to one or more persons over 16
    2. is delivered on behalf of an organisation
    3. requires training to be undertaken by the person delivering the service
    4. has a frequency and formality attached to the service
    5. either:
      1. requires a contract to be agreed between the service provider and the recipient of the service prior to the service being carried out; or
      2. is personalised to an individual adult’s needs

    With regards to training, this test may be met by training which is not specialist or related to a professional qualification. They must have had some basic training.

    It should be noted that an individual is only a protected adult at the time they receive the service.

  4. It is possible for a 16 or 17 year old to be both a child and a protected adult.

5. Regulated Work

There are two types of regulated work (paid or unpaid):

  • regulated work with children
  • regulated work with protected adults

The reason for having two types of work and two corresponding lists of individuals who are unsuitable to do such work is to allow for the fact that unsuitability to work with one group does not necessarily mean unsuitability to work with another.

It is not possible to provide a definitive list of roles, positions or types of employment that constitute regulated work. The PVG Act defines regulated work by reference to the activities that a person does; the establishments in which a person works; the position that they hold; or the people for whom they have day to day management responsibility.

It is important to try and focus on how these definitions impact on University work and roles.

6. How to assess whether the work is regulated

  1. There are five steps to assessing whether an individual is doing regulated work. This involves the consideration of:
    1. Is it work? (paid or unpaid)
    2. Who are they working with? (children or protected adults)
    3. What do they do? Are any of their duties an ‘activity’ under the 2007 Act?
    4. If so, is the activity part of their normal duties?
    5. Are there exceptions, specifically ‘incidental’ which apply?

    Note that not all 5 steps are required in all cases. There is a very helpful assessment tool on the Disclosure Scotland website, using these 5 steps.

    It is useful to look at each of these 5 steps in turn and how they might apply to the University.

  2. Is it work? – Step 1
    It will almost always be work in the University paid or unpaid. Although, some students doing research projects are technically not doing work within the meaning of the Act but this will be explained further at section 11.
  3. Who are they working with? – Step 2
    Many employees will have contact with children and protected adults as part of their roles with the University and therefore can be deemed to be working with them e.g. Lecturers, School administrative staff. However this does not necessarily mean that they will have to become members of the scheme as progression through the remaining steps shows.
  4. What do they do? – Step 3

    Regulated work with children

    According to the 2007 Act, an individual may be doing regulated work with children if their work involves any of following activities. (This is not the full list as detailed in the guidance but those activities that may be relevant to the University):

    • Teaching, instructing, training or supervising children
    • Being in sole charge of children
    • Unsupervised contact with children under arrangements made by a responsible person
    • Providing advice or guidance to a child or to particular children which relates to physical or emotional wellbeing, education or training

    It could be said that all academic staff teach children (students who are 17 year olds); lots of administrative staff have unsupervised contact with children but for the majority of the time, it is unlikely that they will have to become members of the PVG Scheme because of the ‘incidental’ test which is explained under step five.

    Of course, there are exceptions to this within the University, most notably in the Sports Centre where school aged children are regularly taught by the instructors and summer schools where staff are also involved with school aged children.

    Regulated Work with Adults

    An individual may be doing regulated work with adults if their work involves any of the following activities (again not the full list):

    • Teaching, instructing, training or supervising protected adults
    • Being in sole charge of protected adults
    • Providing assistance, advice or guidance to a protected adult or particular protected adults which relates to physical or emotional wellbeing, education or training.

    For the most part, dealing with protected adults in the University should be confined to more pastoral roles with students and staff e.g. Occupational Health staff, Student Support Advisers, Wardens etc. However, managers should be alert to any projects they are setting up in case existing staff have to become Scheme members e.g. research work in care homes.

  5. Is the activity part of their normal duties? – Step 4
    The concept of normal duties is extremely important in limiting the scope of regulated work.

    Normal duties can be considered something the individual might be expected to do as part of their post on an ongoing basis, e.g. appearing in a job description. There is no particular frequency or duration of work specified in the Act. It depends on the context but it should be reasonably anticipated and occur regularly.

    It is unlikely to be normal duties if it is done in response to an emergency; arranged at the last minute to stand in for sickness or other unexpected absence or done as a one off activity of short duration which is not part of the individual’s normal routine or occupation.

    If it is not normal duties, it is unlikely to be regulated work.

  6. Are there exceptions, specifically ‘incidental’ which apply? – Step 5
    The scope of regulated work is narrowed by the ‘incidental’ test. This is very important for the University. Some, but not all, activities with children or protected adults are excluded from being regulated work if the activity is occurring incidentally to working with individuals who are not children or protected adults. For example, Lecturers in Universities are teaching classes that are aimed at the population as a whole but include some children in first year undergraduate classes. Despite the fact that some children attend university, teaching them is incidental to the teaching of adults.

    An activity is likely to be incidental when:

    • it is open to all
    • attractive to a wide cross-section of society; or
    • attendance is discretionary

    It is unlikely to be incidental when:

    • targeted at children or protected adults
    • more attractive to children or protected adults than others; or
    • attendance is mandatory
  7. Work with children themselves in work
    If children under the age of 18 are engaged in work for the University (paid or unpaid), individuals working with those children do not have to become members of the PVG Scheme.

    However there are some exceptions to the rule for children under the age of 16 not undertaking paid employment/apprenticeship. The example given in the guidance is that of a Scout leader supervising a group of 14 year olds calling door-to-door to do odd jobs for money. The Scout leader would have to join the scheme.

  8. Children on work experience
    If children aged 16 or 17 are on work experience within the University, individuals working with them are exempt from becoming members of the scheme as the children themselves are considered to be working.

    In respect of younger children on work experience, there is no such exemption, however, it is to be expected that most individuals working with such children would not be doing regulated work because their interaction with the children would either: not be one of the activities; not be their normal duties; or be incidental. For example, Disclosure Scotland says that any care offered to children on work placement would have to be above and beyond what is normally provided to employees for this to be any more than incidental. In practice, only any individual(s) allocated special responsibilities for the children for the entire duration of their placement is/are likely to be doing regulated work.

7. Regulated Work and University Posts

See Appendix 1 for a list of posts which the University currently considers as regulated work. The list is not exhaustive and it is important to continuously revisit the content of posts to assess whether they evolve into regulated work.

8. Work in Schools

Schools are classed as ‘establishments’ under the Act and are more tightly regulated than Universities. The same goes for organisations like care homes and FE colleges.

Careful consideration has to be given to the types of posts in the University that may be required to go out into schools e.g. in Student Recruitment and Admissions. Advice has been sought from Disclosure Scotland around this and the general rules to follow are:

There is a difference between providing advice and guidance to children as opposed to just imparting information. The former would be classed as regulated work and therefore would require scheme membership, the latter would not.

There is another issue for consideration which is the opportunity to have unsupervised contact with children in the school. If doing anything permitted or required in connection with why the university employee is there allows them the opportunity to have unsupervised contact with children then this may be classed as regulated work. The example used is being able to wander the school corridors alone, therefore having access to the children. However, having a one off conversation with a child at an event in a hall with lots of people around is unlikely to fall into this category.

It would be best, when going into a school to limit the opportunity for unsupervised contact with children e.g. ensure teachers are always present.

If, as part of your role, you are frequently required to do work in schools e.g. every week then it may become part of your normal duties to work in an ‘establishment’ and subsequently will under the scope of regulated work.

9. Research Issues

  1. Generally speaking, when conducting research the following may provide some guidance when thinking about research projects. It is not meant to be exhaustive and each project will have to be assessed on its own merits.
    • Research with children in ‘establishments’ – if doing anything permitted or required in connection with the research allows a researcher the opportunity to have unsupervised contact with children then PVG Scheme membership will probably be required.
    • Research with protected adults in ‘establishments’ – if doing anything permitted or required in connection with the research allows a researcher the opportunity to have unsupervised contact with protected adults that is more than incidental then again membership will probably be required.
    • If research is being conducted somewhere other than in an ‘establishment’, where a researcher has unsupervised contact with children under arrangements made by a responsible person (e.g. parent; more information can be obtained on who is a responsible person at Chapter 2, Regulated Work, Updated September 2015) then it is highly likely that scheme membership will be required. For example, a researcher interviewing children on their own in a youth club with the permission of the parents and the youth worker.
  2. If individuals are going abroad to conduct research and the research they are carrying out would be considered regulated work in Scotland, they are required to join the PVG Scheme before they begin their research in the other country.

10. Summer Schools

Due to the nature of duties performed by staff working with summer schools, it is likely that they will fall into the category of regulated work. They could be:

      • Teaching, instructing, training or supervising children
      • Being in sole charge of children
      • Having unsupervised contact with children under arrangements made by a responsible person

They could also on occasion be doing work with protected adults.

It would therefore be advisable that if staff are regularly working with summer schools that they become members of the PVG Scheme unless their duties are such that they don’t fall into regulated work.

11. Students

      1. If students are being employed by the University to carry out regulated work as defined in this policy, they should become members of the PVG Scheme.
      2. Whilst the research projects that students carry out may not be classed as work within the meaning of the Act, some of the activities that they will be undertaking whilst carrying out the research could be classed as regulated work if done by members of staff. Advice from Disclosure Scotland suggests that by classing students as being on placements, they will be eligible to join the PVG Scheme. Advice should be sought from Disclosure Scotland or Human Resources in cases where the situation is not clear.

12. Existing Staff

      1. The PVG Scheme will initially apply only to new members of staff or existing members of staff who transfer into roles which involve them undertaking regulated work with children and/or protected adults, but the University will subsequently be required to carry out retrospective checks on existing members of staff who undertake duties which fall under the scope of the Act. It is anticipated that this process will be phased in over a period of 3 years, commencing in 2012.
      2. The University is also required to notify Disclosure Scotland when any members of staff who have been employed in regulated work leave the University.

13. PVG Scheme Records

Individuals who are required by the University to join the PVG Scheme for the first time will complete the relevant form and will be issued with a Scheme Record. This Scheme Record is sent to the University as well as the individual and it contains all the vetting information that Disclosure Scotland has regarding the individual. This vetting information may consist of offences that are not relevant to working with children or protected adults much like the old enhanced disclosures.

Once someone is a scheme member, they carry their membership with them from employer to employer making it a portable asset.

For individuals who join the University and are already members of the scheme, a Scheme Record Update can be applied for. This is designed to be a quicker, cheaper and simpler check and it will soon be available to do on line. A Scheme Record Update will be issued and it will state whether any vetting information was on the original Scheme Record as well as whether or not new information has been added since. It will not provide the details of that information. It may be that in such cases, the University would wish to ask for another full Scheme Record to be able to fully assess the individual’s suitability for work.

If the individual is barred from regulated work, they and the University will be advised by letter that they are barred from the type of work that they have applied for.

14. Fees

The University will pay for scheme membership and any updates required for employees. It reserves the right to review its position regarding this at any time. There are two main fee charges:

      • Scheme Record: £59
      • Scheme Record Update: £18

15. Sharing Disclosure/Scheme Records

There are a number of offences in relation to the sharing of records. The main ones to note are:

      • It is an offence for anybody to share somebody else’s records
      • Lawful sharing is permitted where it is necessary to share the record with other employees within the organisation. This should only be for the purposes of enabling the employer to determine suitability for regulated work. In relation to the University this will normally involve the Head of School/Unit with possible reference to the relevant member in the Office of the Principal.
      • A PVG Scheme member may share their own record

16. Referrals by Organisations

The PVG Act places a duty on organisations to make a referral in certain circumstances. Broadly speaking, these are when: an individual doing regulated work has done something to harm a child or protected adult and the matter is so serious that the organisation has or would permanently remove the individual from regulated work.

Failure to refer an individual may mean that someone unsuitable for regulated work does not become barred and could go on to harm other vulnerable people.

The Director of Human Resources will usually be responsible for making the referral. It is an offence for the University not to make a referral within 3 months of the criteria being met.

17. Recruitment of Ex-Offenders

The University of St Andrews actively promotes equality of opportunity for all with the right levels of talent, skills and potential, and welcomes applications from a wide range of candidates including those with criminal convictions.

Having a criminal record will not necessarily prevent an individual from working at the University. The nature of the position and the relevance to the job, together with the circumstances and background of the offences will be considered very carefully by the Head of School/Unit and Human Resources before a decision is made.

The Rehabilitation of Offenders Act 1974 allows an employer to ask any job applicant whether or not they have any unspent convictions. The employer can only ask about spent as well as unspent convictions if the job applied for is excluded from the 1974 Act by way of the Exclusions and Exemptions (Scotland) Order 2003. Posts identified as childcare and vulnerable adults jobs are excluded under this order. As a result of this, the University has the right to consider an applicant’s entire criminal record including spent convictions and other relevant information obtained through the PVG Scheme Record when deciding whether or not to confirm their appointment.

Where an applicant fails to reveal information that is directly relevant to the position sought, this may lead to a withdrawal of an offer of employment. Action may be taken against an existing member of staff, where it is discovered that s/he has failed to reveal information directly relevant to the position held.

18. Procedure for Recruitment and Selection of University Staff

      1. Applicants for all posts who apply for any position within the University will have to declare any unspent convictions on the e-recruitment system/application form. A link to this policy is included on the e-recruitment system and a hard copy should be included with the application form.
      2. Should the position be classed as regulated work, it will state clearly on the Further Particulars that the successful candidate will be required to obtain PVG Scheme membership. This will be for working with children, protected adults or both.
      3. Any criminal record information declared will only be shared by those who need to know as part of the selection process i.e. Head of School/Unit with possible reference to the relevant member in the Office of the Principal.
      4. Failure to reveal information relating to unspent convictions could lead to withdrawal of an offer of employment or termination of employment.
      5. For posts which require membership of the PVG Scheme, contracts of employment will be sent to successful candidates with the wording ‘subject to being a member of the Protection of the Vulnerable Groups Scheme and receipt by the University of a satisfactory PVG Scheme Record’.
      6. As well as new employees, the University will require all existing employees who transfer to a new role which involves them undertaking duties which fall into the scope of regulated work, to become members of the PVG Scheme.
      7. Guidance will be provided by the University to individuals joining the scheme.
      8. For those who are already scheme members, a Scheme Record Update will be requested, although the University reserves the right to request a full Scheme Record should the Update indicate that vetting information exists.
      9. No individual should commence work with the University until PVG membership has been confirmed. If exceptional circumstances require that the individual commences work before the PVG membership has been confirmed, advice should be sought from Human Resources.
      10. The University will take into account the following when considering an applicant with a criminal conviction:
        • Whether the conviction or other matter revealed is relevant to the position in question
        • The seriousness of any offence revealed
        • The length of time since the offence or other matter occurred
        • Whether the applicant has a pattern of offending behaviour or other relevant matter
        • Whether the applicant’s circumstances have changed since the offending behaviour or the other relevant matters.
        • Are the applicant’s references satisfactory?

        Normally, no decision will be taken on whether an applicant should be appointed until a meeting has been held with the applicant, a Human Resources Officer and the relevant manager responsible for the position unless the information contained in the record is clearly irrelevant to the decision to appoint.

      11. Successful candidates who require PVG membership but have spent the previous 12 months or more outside the UK will also have to provide an appropriate criminal records check from the countries that they have resided in. The University recognises that this may not always be possible and in such circumstances the individual will be required to sign a declaration form.

19. Other Types of Checks

For non-regulated work three types of disclosure checks are still available – basic, standard and enhanced.

The University reserves the right to use these other checks if required.

20. Handling, Holding and Destroying Scheme Record/Disclosure Information

Please see Appendix 2 for this information.

21. Policy Review

This policy will be reviewed every 3 years or as and when there is a change in the legislation/guidance.

Appendix 1: Posts that will fall under the scope of regulated work >>
Appendix 2: Handling, Holding and Destroying Scheme Record/Disclosure Information >>

Appendix 3: General Guidance Notes for the PVG Scheme (PDF, 47 KB)

If you have any queries regarding this policy, please contact Human Resources on ext 2557 or email lm80@st-andrews.ac.uk. You can also get more information at www.disclosurescotland.co.uk.

Human Resources
April 2011