Inclusion in list on reference following disciplinary action, etc.
4.—(1) A child care organisation shall, and any other organisation may, refer to the Department an individual who is or has been employed in a child care position 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 organisation has dismissed the individual on the grounds of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm;
(b)that the individual has resigned, retired or been made redundant in circumstances such that the organisation 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 organisation has, on such grounds, transferred the individual to a position within the organisation which is not a child care position;
(d)that the organisation has, on such grounds, suspended the individual or provisionally transferred him to such a position as is mentioned in sub-paragraph (c), 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 organisation has dismissed the individual, he has resigned, retired or been made redundant or the organisation has transferred him to a position within the organisation which is not a child care position;
(b)information not available to the organisation at the time of the dismissal, resignation, retirement, redundancy or transfer has since become available; and
(c)the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned, retired or been made redundant, the organisation 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 individual to be included in the list kept under Article 3, the Department shall—
(a)determine the reference in accordance with paragraphs (5) to (7); and
(b)pending that determination, provisionally include the individual in the list.
(5) The Department shall—
(a)invite observations from the individual 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 organisation 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 organisation has dismissed the individual or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
the Department shall confirm the individual’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 organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b)that the individual is unsuitable to work with children.
(8) The reference in paragraph (6)(b) to the organisation dismissing the individual 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 organisation 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 organisation transferring him, on such grounds, to a position within the organisation which is not a child care position.
(9) This Article does not apply where—
(a)the organisation carries on an employment agency, nursing agency or employment business; and
(b)the individual in question is a supply worker in relation to it.