(1)A person who provides care for vulnerable adults (“the provider”) shall refer a care worker to the Secretary of State if there is fulfilled—
(a)any of the conditions mentioned in subsection (2); or
(b)the condition mentioned in subsection (3).
(2)The conditions referred to in subsection (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 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 subsection (1)(b) is that—
(a)in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired 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 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 or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).
(4)If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall—
(a)determine the reference in accordance with subsections (5) to (7); and
(b)pending that determination, provisionally include the worker in the list.
(5)The Secretary of State shall—
(a)invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and
(b)invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).
(6)Where—
(a)the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and
(b)in the case of a reference under subsection (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 Secretary of State shall confirm the worker’s inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.
(7)This subsection applies if the Secretary of State 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 subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (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 section does not apply where—
(a)the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and
(b)the worker in question is a supply worker in relation to him.
(10)Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.
Modifications etc. (not altering text)
C1S. 82(4)-(7) applied (with modifications) (26.7.2004) by 1999 c. 14, ss. 2C(1)(4)(5) (as inserted by 2000 c. 14, ss. 97(1), 122; S.I. 2004/1757, art. 2(b))