You are legally required to make a referral to the DBS if you dismiss or remove an employee from regulated activity (or would have done had they not already left) because that employee caused harm or posed a risk of harm to vulnerable adults or children. Staff with responsibility for recruiting and withdrawing employees from regulated activity should ensure they understand their obligations under the Safeguarding Vulnerable Groups Act 2006 (as amended by the Protections of Freedoms Act 2012) (SVGA).

The SVGA provides the legislative framework for the Vetting and Barring Scheme, enabling those who are unsuitable to be working with children and/or vulnerable adults to be identified and barred from doing so. Whilst employers are familiar with the need to carry out DBS checks as part of the recruitment process, it appears that practice in terms of referring workers to the DBS is more mixed. The duty to refer applies irrespective of whether another body has made a referral to the DBS in relation to the same person and regardless of whether you have made a notification to another body such as your local safeguarding team or the individual’s professional regulator (e.g. GMC, NMC, etc).Failure to refer without reasonable justification when you are under a duty to refer is an offence which, if convicted, could make you liable to a fine up to £5,000. Employers who engage workers in regulated activity for the purposes of the SVGA should revisit their procedures to ensure they facilitate referrals to the DBS being made where required.

For further advice on the duty to refer please get in touch with one of Bevan Brittan’s regulatory and compliance experts.

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