36.—(1) A person who provides care for vulnerable adults (“the provider”) shall refer a care worker to the Department if there is fulfilled—
(a)any of the conditions mentioned in paragraph (2); or
(b)the condition mentioned in paragraph (3).
(2) The conditions referred to in paragraph (1)(a) are—
(a)that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
(b)that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;
(c)that the provider has, on such grounds, transferred the worker to a position which is not a care position;
(d)that the provider has, on such grounds, suspended the worker or provisionally transferred him to such a position which is not a care position, but has not yet decided whether to dismiss him or to confirm the transfer.
(3) The condition referred to in paragraph (1)(b) is that—
(a)in circumstances not falling within paragraph (2), the provider has dismissed the worker, he has resigned, retired or been made redundant or the provider has transferred him to a position which is not a care position;
(b)information not available to the provider at the time of the dismissal, resignation, retirement, redundancy or transfer has since become available; and
(c)the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned, retired or been made redundant, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in paragraph (2)(a).
(4) If it appears from the information submitted with a reference under paragraph (1) that it may be appropriate for the worker to be included in the list kept under Article 35, the Department shall—
(a)determine the reference in accordance with paragraphs (5) to (7); and
(b)pending that determination, provisionally include the worker in the list.
(5) The Department shall—
(a)invite observations from the worker on the information submitted with the reference and, if it thinks fit, on any observations submitted under sub-paragraph (b); and
(b)invite observations from the provider on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under sub-paragraph (a).
(6) Where—
(a)the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant; and
(b)in the case of a reference under paragraph (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
the Department shall confirm the worker’s inclusion in the list if paragraph (7) applies; otherwise it shall remove him from the list.
(7) This paragraph applies if the Department is of the opinion—
(a)that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b)that the worker is unsuitable to work with vulnerable adults.
(8) The reference in paragraph (6)(b) to the provider dismissing the worker on such grounds as are mentioned in paragraph (2)(d) includes—
(a)a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and
(b)a reference to the provider transferring him, on such grounds, to a position which is not a care position.
(9) This Article does not apply where—
(a)the provider carries on an employment agency, nursing agency or employment business; and
(b)the worker in question is a supply worker in relation to him.