Employer Criminal Background Check Ireland

GeneralInter · 05-03-2021 9:02pm #1

Hey everyone.

Apologies if this is not the right place.

I'm wondering if anyone can help me to definitively answer a question regarding the rights of employers and what information they have access to.

Can an employer in Ireland, or any other country, request proof of criminal history in Ireland, including any convictions for the purpose of employee screening in a situation where vulnerable adults or children are not involved?

I've investigated for the past couple of days and as far as I can tell, it's not legal to even request that information unless it is through the Garda Vetting service and it is specifically a job where vulnerable children or elderly etc are involved.

Secondly - The system for criminal background checks in the UK is such that an employer can easily request this same information from the Disclosure and Barring Service(DBS), but can a UK agency request the same information from the Garda vetting agency or even find that information somewhere else?

An employer can absolutely ask if a candidate has any previous convictions, but as far as I can tell, they have no legal way to verify it. Even if they ask the candidate to allow access or provide that information, it seems to be illegal to do so.

I would appreciate any information on this topic.

Thanks a lot!

Augme · 06-03-2021 12:01am

Do you mean can they request and get access themselves or can they ask an applicant for it?

GeneralInter · 06-03-2021 3:24am

I'm wondering can they do either. Is it possible for an employer to even request the information and if so, can they get access somehow.

GeneralInter · 06-03-2021 3:57am

I'd like to know what this really means:

4. (1) A person shall not, in connection with—

(a) the recruitment of an individual as an employee,

(b) the continued employment of the individual, or

(c) a contract for the provision of services to the person by an individual,

require that individual to—

(i) make a request under Article 15 or under section 91 , or

(ii) supply the person with data relating to that individual obtained as a result of such a request.

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html

Yurt2 · 06-03-2021 4:38am

My understanding is that the employer has to be registered and approved with Garda vetting in order for a criminal background check to take place. Otherwise, every Tom, Dick and Harry employer would be demanding a background check for a paper round or washing dishes in the kitchen of Milano's.

Banks and security companies handling significant amounts of cash would be an example of employers registered for vetting, as well as anything to do with working with vulnerable individuals.

I wouldn't worry about it. Nobody can demand information about you from AGS or anyone else.

tanit · 06-03-2021 11:52am

In certain jobs you must make disclosures regarding criminal or other type of legal issues covering at least a certain period of time such as in the case of people working in audit. You do not need to be an auditor, it is a requirement if you participate in audit work, it is a legal requirement and you need to fill out paperwork about that. In this case you are not dealing with either vulnerable adults or children or handling cash but you have the legal requirement to have a certain type of background check. And the employer must do it by law and as a requirement by IAASA.

There might be more jobs when something similar occurs. I assume (but I do not know with certainty) that in order to be a garda officer or a civil servant within the gardai you will need something similar.

Yyhhuuu · 06-03-2021 12:11pm

A good few years ago a friend of mine was accused of taking an item worth about €10 in a shop. He was arrested and taken to the Garda Station. Initially the Garda was going to prosecute but then told him if he made a statement admitting it he would not be prosecuted. He was not cautioned as this pre -dates the introduction of adult cautions. He is now thinking of applying for graduate medicine ( where criminal checks are undertaken). Would this show up. Perhaps he could withdraw the statement? He was never prosecuted or given any caution.

06-03-2021 12:15pm

Yyhhuuu wrote: »

A good few years ago a friend of mine was accused of taking an item worth about €10 in a shop. He was arrested and taken to the Garda Station. Initially the Garda was going to prosecute but then told him if he made a statement admitting it he would not be prosecuted. He was not cautioned as this pre -dates the introduction of adult cautions. He is now thinking of applying for graduate medicine ( where criminal checks are undertaken). Would this show up. Perhaps he could withdraw the statement? He was never prosecuted or given any caution.

All Garda vetting returns is a list of convictions. As you”r friend” do not have any convictions, then there is nothing to return.

GeneralInter · 06-03-2021 12:20pm

Thanks for the responses!

As far as I read, organisations that deal specifically with vulnerable people or children are the only ones that law is aimed at. However it does appear that law was expanded to include security services somewhat recently. I've been seeing other sources that bank employees are also vetted but I can't see how it would be legal as they aren't working in security or around the vulnerable.
https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/data_protection_at_work/garda_clearance_for_employees.html

The law definitely allows for an in depth check on those that want to work for the Gardai. The 2016 Spent conviction act specifically mentions that you still have to disclose everything to Gardai if applying. (They will see anyway)

Jim2007 · 06-03-2021 12:21pm

There are several firms that specialize in the provision of employee background checks. Employers don't need to break the law to have a background check done. And most of these firms provide a pan Europe service.

And those firms don't need to break the law either, criminal convictions are a matter of pubic record, they may not be available online, but they are available and the agencies have the bodies to do the leg work.

The reports usually cover:
- Social Media review
- Paper clippings review
- Traffic convictions
- Criminal convictions

and so on.

Yyhhuuu · 06-03-2021 12:27pm

I'm not sure why you chose to use "friend" in inverted commas?

GeneralInter · 06-03-2021 12:43pm

Yyhhuuu wrote: »

I'm not sure why you chose to use "friend" in inverted commas?

I'm assuming he thinks it's you!

"There are several firms that specialize in the provision of employee background checks. Employers don't need to break the law to have a background check done. And most of these firms provide a pan Europe service.

And those firms don't need to break the law either, criminal convictions are a matter of pubic record, they may not be available online, but they are available and the agencies have the bodies to do the leg work.

The reports usually cover:
- Social Media review
- Paper clippings review
- Traffic convictions
- Criminal convictions

and so on."

That's interesting as technically it is an internet search and not requesting private information. Can you link to a background check company that can retrieve conviction information in Ireland?

Jim2007 · 06-03-2021 2:25pm

GeneralInter wrote: »

Can you link to a background check company that can retrieve conviction information in Ireland?

Unless the case was held in camera or the judge placed restrictions on the reporters, you'll find it in one of the local papers.

GeneralInter · 06-03-2021 4:41pm

In that case, this http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html wouldn't be affected?

I'm wondering how this law comes into play if an employer can still find and use the information.

Yurt2 · 06-03-2021 8:06pm

GeneralInter wrote: »

In that case, this http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html wouldn't be affected?

I'm wondering how this law comes into play if an employer can still find and use the information.

If it's open-source information gathering, they are likely doing no wrong. If they disseminated the information gathered and you felt defamed in some manner, you could seek legal remedy (though with no guarantee of success).

There are all sorts of corporate investigators and consultants that would prepare dossiers of information on individuals perhaps without their explicit knowledge, particularly in high-flying careers when companies are doing due diligence on C suite hires or board-level hires. Is it underhanded and a bit icky? Probably. Is it illegal? The devil is in the detail. For the most part, it's probably not illegal but one could see how it could spill into the realm of having your rights infringed.

Jim2007 · 06-03-2021 8:28pm

GeneralInter wrote: »

In that case, this http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html wouldn't be affected?

I'm wondering how this law comes into play if an employer can still find and use the information.

It’s irrelevant. No one is compelling the potential employee to do anything. There is no law to restrict the public (corporate or natural) from accessing data in the public domain.

It would be up to the accused or his legal team to make an application to the court to restrict publication of the conviction at the time of the hearing. But it is not common in the ordinary course of events for it to succeed.

As they say justice must not only be done, it must be seen to be done.

GeneralInter · 07-03-2021 12:07pm

Thanks Yurt!

Jim2007 wrote: »

As they say justice must not only be done, it must be seen to be done.

Great quote Jim!

In a scenario where an employer in Ireland would like to do a criminal background check on an individual where the candidate will not be working in finance or around vulnerable, or in a government related position; If they search the public domain and see an article in the newspaper regarding a conviction of the candidate, but the candidate denies it, how can that employer compel an individual to provide proof of criminal history?

Here http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html it seems to be illegal to do so. Without official confirmation I don't see how it could have an effect.

Jim2007 · 07-03-2021 1:33pm

GeneralInter wrote: »

Thanks Yurt!

Great quote Jim!

In a scenario where an employer in Ireland would like to do a criminal background check on an individual where the candidate will not be working in finance or around vulnerable, or in a government related position; If they search the public domain and see an article in the newspaper regarding a conviction of the candidate, but the candidate denies it, how can that employer compel an individual to provide proof of criminal history?

Here http://www.irishstatutebook.ie/eli/2018/act/7/section/4/enacted/en/html it seems to be illegal to do so. Without official confirmation I don't see how it could have an effect.

It won't get that far. Once the report comes back from the agency with something like that, you are out of the running. There are plenty of candidates without such a red flag on their report, so you continue with the remaining pool. No employer will waste time and money on something like this when there are other options available.

The recruiting manager will most likely not even get to see the report, they will just be told the candidate failed the background check by HR and that is it. HR will send the bog standard rejection letter and that is where it ends.

Mrs OBumble · 07-03-2021 1:39pm

GeneralInter wrote: »

If they search the public domain and see an article in the newspaper regarding a conviction of the candidate, but the candidate denies it, how can that employer compel an individual to provide proof of criminal history?

The candidate can deny it 'til the cows come home, but unless they can point to an apology printed by the newspaper saying they had made a factual error, then it's fair enough to assume that the conviction happened.

The candidate may be able to make a case under some employment law that this information should not be used in making the hiring decision, because it's not relevant to the job. I'm not sure what exact law is involved, but am pretty confident that it's not the one you are thinking about. And I think that it will be pretty expensive to hire a lawyer to take this case successfully.

GeneralInter · 07-03-2021 3:53pm

You both feel that the information is readily available in newspapers, somewhere that can be accessed legally by background check companies. Do ye of any that provide that service for Irish records?

What do ye make of this: https://www.cpni.gov.uk/system/files/documents/71/a2/How_To_Obtain_An_Overseas_Criminal_Record_Check_May_2018.pdf

Ireland starts on page 189.

Mrs OBumble · 07-03-2021 4:23pm

GeneralInter wrote: »

You both feel that the information is readily available in newspapers, somewhere that can be accessed legally by background check companies. Do ye of any that provide that service for Irish records?

I know they exist. I don't know the company names. Google "companies providing pre-employment screening" is likely to get you some.

GeneralInter wrote: »

What do ye make of this: https://www.cpni.gov.uk/system/files/documents/71/a2/How_To_Obtain_An_Overseas_Criminal_Record_Check_May_2018.pdf

Ireland starts on page 189.

It's factually correct.

As it says, only some employers can apply for garda vetting. In other cases

Individuals may also apply to their local district superintendent for a
Police Certificate. Officially, a Police Certificate will not be issued for
pre-employment screening processes. However, it is understood that
certificates may have been obtained for this reason.
Any individual may obtain access to their own criminal record under
the provisions of the Data Protection Act 1988/2003. Irish legislation
allows an individual to provide consent for disclosure to be made to a
third party.

Irish people know that if they want a job in the UK, the only option is to apply for a police certificate and lie about what it's wanted for. If you don't do that, you aren't going to get the job in the UK.

As the document says "the same legislation prohibits employers from
requesting this from prospective employees" - but that is Irish legislation, which applies in Ireland, not in the UK.

GeneralInter · 07-03-2021 4:44pm

It's legal to do background screening for sure, I've found lots that look into previous employment or financial background like this one:
https://www.pre-screen.ie/

I've read that too, you need to bend the rules to get employed in the UK, unless it's for a government agency in the UK as apparently they have legal channels.

So if the job is in Ireland then there is no legal way for a non Garda vetting registered organisation to check your history.

So it comes down to if that information was in the public domain, and if a background checking service can locate it.

I appreciate all of the thoughts on this by the way.

harr · 07-03-2021 4:54pm

Are all convictions in Ireland not public knowledge ?
A very basic web search on my local papers will give details of convictions of local people.
In fact a lot of local papers have court sections in which names would be printed.
On a smaller scale if you were employing someone local for a job its quite easy to find out a lot of information.
A quick search on social media would also give you a general impression of the type you person who has applied for a job.
I am sure such companies exist who episodes get you a fairly comprehensive background check if needed.

GeneralInter · 07-03-2021 5:08pm

harr wrote: »

Are all convictions in Ireland not public knowledge ?
A very basic web search on my local papers will give details of convictions of local people.
In fact a lot of local papers have court sections in which names would be printed.
On a smaller scale if you were employing someone local for a job its quite easy to find out a lot of information.
A quick search on social media would also give you a general impression of the type you person who has applied for a job.
I am sure such companies exist who episodes get you a fairly comprehensive background check if needed.

It's an interesting question because I know that local papers print convictions but they aren't the official source of information. The actual holders of that information are the court systems and the Gardai.

If I wanted to get your criminal history, it wouldn't be possible as it's only available to you. Of course I could definitely check the newspaper but I'm not sure if that's a grey in hiring, since as far as I know the employer would have no way to prove it.

Jim2007 · 07-03-2021 5:28pm

GeneralInter wrote: »

You both feel that the information is readily available in newspapers, somewhere that can be accessed legally by background check companies. Do ye of any that provide that service for Irish records?

What do ye make of this: https://www.cpni.gov.uk/system/files/documents/71/a2/How_To_Obtain_An_Overseas_Criminal_Record_Check_May_2018.pdf

Ireland starts on page 189.

Where are you going with this??? You can't stop people from accessing public data and you will never know that they did. You will simply get a polite PO mail from HR that you did not make the next round, if even that.

No employer is going to discuss the ins and outs of a conviction in case it would leave themselves open to legal action in situations where your application was rejected.

And also, most firms that require such stringent background checks, will do so again randomly over the period of employment.

harr · 07-03-2021 6:47pm

GeneralInter wrote: »

It's an interesting question because I know that local papers print convictions but they aren't the official source of information. The actual holders of that information are the court systems and the Gardai.

If I wanted to get your criminal history, it wouldn't be possible as it's only available to you. Of course I could definitely check the newspaper but I'm not sure if that's a grey in hiring, since as far as I know the employer would have no way to prove it.

I know in my locality a reporter will sit in on court cases the days they are in session, then do reports for local papers .
Same reporter here does it for all the papers.

In the case of larger companies doing background checks, plenty of ex guards do that security work and I am sure they would have sources to get info .. probably a lot of it been given out off the record to companies.

Jim2007 · 07-03-2021 7:09pm

harr wrote: »

In the case of larger companies doing background checks, plenty of ex guards do that security work and I am sure they would have sources to get info .. probably a lot of it been given out off the record to companies.

No they don't. Just like every other organization that handles sensitive data, every access is audited. The access to the records are recorded and reported to the supervisory level and explanations are required for anything unusual. A Garda might manage to get away with it a few times a year, but it would only be a drop in the ocean compared to the number of reports they need to compile. A very few would be willing to risk their job and pension to do a former colleague a favor even for a couple of hundred Euro.

GeneralInter · 07-03-2021 8:14pm

Jim2007 wrote: »

Where are you going with this??? You can't stop people from accessing public data and you will never know that they did. You will simply get a polite PO mail from HR that you did not make the next round, if even that.

No employer is going to discuss the ins and outs of a conviction in case it would leave themselves open to legal action in situations where your application was rejected.

And also, most firms that require such stringent background checks, will do so again randomly over the period of employment.

You can't stop anyone accessing public record, so I asked is there a service that you know of that locates criminal related history. I would like to see a company or service that I could use to find criminal history on any individual that is in the public domain.

harr wrote: »

I know in my locality a reporter will sit in on court cases the days they are in session, then do reports for local papers .
Same reporter here does it for all the papers.

In the case of larger companies doing background checks, plenty of ex guards do that security work and I am sure they would have sources to get info .. probably a lot of it been given out off the record to companies.

I'm sure some gardai break the rules but I wouldn't worry about that because any official background company would have to show their sources.

Jim2007 · 08-03-2021 6:32pm

GeneralInter wrote: »

I'm sure some gardai break the rules but I wouldn't worry about that because any official background company would have to show their sources.

Every single post you have made, shows that you are clueless about the entire process. Not much of a basis for being sure about anything. But since you are so sure, I guess we can stop trying to help you understand.

GeneralInter · 08-03-2021 7:49pm

Jim2007 wrote: »

Every single post you have made, shows that you are clueless about the entire process. Not much of a basis for being sure about anything. But since you are so sure, I guess we can stop trying to help you understand.

Jim, I'm not sure why you are so upset at me asking questions. I've admitted I don't know the answers which is why I created this post.

Clearly argumentative responses as a moderator is bizarre to me but since I don't post on Boards.ie often, I don't know what the norm is.

I appreciate everyone that responded.

mariaalice · 08-03-2021 8:34pm

There is a simple point that is being missed, the employer can ask the candidate do they have a criminal record usually in a written application, and failure to disclose the information will lead to dismissal.

There is no involvement of anything legal or background checks in that.

The candidate could lie of course but they know the consequences if they do.

Employer Criminal Background Check Ireland

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