Background checks

[Updated 11/5/10; 6/4/11] People often wonder if it is possible to carry out a background check on someone in Ireland. The short answer is: not easily.

There is no central agency which deals with background checking. However:

  • Many are familiar with the concept of “Garda clearance”, but entitlement to apply for Garda clearance is very limited. Clearance services are provided by the Garda Central Vetting Unit and can only be sought by an organisation registered with it. Vetting is generally only carried out for the purposes of a proposed employment involving a significant amount of access to children or vulnerable adults. The proposed employee must consent to the vetting. The service has been extended to cover employment in the private security services industry and it appears likely that further extensions of the service will occur in future. Of potential relevance to background checking, a private investigator is a provider of a security service for the purposes of the Private Security Services Act 2004 and, accordingly, the regulatory regime operated by the Private Security Authority applies to their services.
  • Certain state agencies have specific authority to carry out background checks for licensing purposes (eg. haulage licensing).
  • The Irish Credit Bureau provides credit reports, most commonly for the purposes of lending. A credit report can be requested, usually by a bank or lender, with the consent of the customer. An individual is also entitled to request a copy of their own credit report.

One can carry out one’s own background check of an individual by doing basic research. However, a potential employee must be informed of checks that may be undertaken and obtain their consent if the information sought is not already in the public domain. The same principle would likely apply to any other business or organisation carrying a background check, for example on a customer. Even where the information is in the public domain, the general provisions of the Data Protection Acts 1988 and 2003 will apply if the data is retained on file.

Individuals may request a Police Certificate of Character from the Gardaí for specific purposes, for example when applying for a travel visa or authorisation to establish a business in another country, or for the purposes of inter-country adoption. An individual may also make a data access request in relation to their personal data held by an organisation or business. This includes the right to make such a request to the Gardaí, but they may be entitled to withhold certain data and the results of a data access request do not amount to Garda vetting or a statement of no record.

Employers and businesses should note that section 4(13) of the Data Protection Acts provides that it is an offence to require a person to make a data access request or supply the results of such a request in connection with employment or the provision of services.

For more information, see Chapter 4 of the Law Reform Commission report on spent convictions, which contains a comprehensive overview of vetting in Ireland.

Update (11 May 2010)

Fergal Mawe has an article in the May edition of the Law Society Gazette (pp.20-21 of this PDF) about the Garda vetting procedure and potential breaches of rights.

[T]he garda vetting form … refers to “a statement of all convictions and/or prosecutions, successful or not, pending or completed, in the state or elsewhere as the case may be”.

Say, for instance, if one were to be charged, prosecuted – but not convicted – the Garda Vetting Unit would still inform the employer that the applicant had been prosecuted, even if the outcome had been a not guilty verdict. To this end, the applicant would undoubtedly have his or her chances of winning the position severely damaged, if not totally eroded, due to the suspicion of a criminal history and an inference of guilt. On this point, it is hard not to see a series of breaches of a person’s human and constitutional rights – namely the right to a good name, the right to earn a living, the right to privacy, as well as a fair trial and a presumption of innocence.

To put it simply, if we are to live with a just legal system based on the presumption of innocence, an individual ought not to be prejudiced by prosecutions that did not lead to a criminal conviction.

Update (6 April 2011)

The Government has announced that its Summer legislative programme includes a Spent Convictions Bill:

To provide that in the case of convicted persons whose sentence is below a specific threshold (6 months imprisonment or a fine), they may, under certain circumstances, withhold details of the conviction.

One might have thought that such spent convictions would be omitted from Garda vetting by this Bill. However, while we await the text of that Bill, an indication is available in the Spent Convictions Bill 2007, drafted by the last Government. That Bill would effectively have prohibited reference to spent convictions when sentencing an individual on foot of a new conviction. It would also provide that an individual would not have to disclose spent convictions, but the types of employment covered by Garda vetting would have been excluded by section 5. When presenting that Bill (now lapsed) for its second stage in the Dáil on 18 December 2008, Barry Andrews TD said:

An expert group reported in 2004 on the current arrangements operated by the Garda in co-operation with other agencies such as the Health Service Executive. The group’s report recommended that the vetting system should be put on a statutory footing and that it should address the question of soft information as well as hard information. Meanwhile, as Members are aware, a joint committee has been considering children’s rights and it recently recommended the introduction of legislation to put on a statutory footing the vetting arrangements. This recommendation will be pursued as a matter of urgency in the coming months.

However, the legislation was put on the long finger on more than one occasion. The new Government’s legislative programme (p.10) indicates that the heads of the National Vetting Bureau Bill are not yet agreed and a timeframe for expected publication is not yet available.

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6 thoughts on “Background checks

  1. Thanks for your suggestions. One thing Ive got noticed is that banks along with financial institutions know the dimensions and spending behavior of consumers and also understand that a lot of people max out their cards around the breaks. They smartly take advantage of this fact and commence flooding ones inbox and snail-mail box with hundreds of no-interest APR credit card offers soon after the holiday season finishes. Knowing that for anyone who is like 98% of all American community, youll jump at the one opportunity to consolidate credit debt and shift balances to 0 interest rate credit cards.

  2. Hello,

    very useful article, but it doesn’t covers the current recruitment process of some, if not all, big companies in Ireland. The procedure is:

    1 One or more phone interviews – standard stuff and completely OK.

    2 Face to face interview – still standard nothing to complain. In general they tell the applicant that they check the CV – they don’t call it background check. They don’t disclose how they conduct this checks.

    3 After approximately a week the applicant gets an email that she has gotten the job, attached is the contract. At this point an applicant must believe that the checks are done, and the results are satisfying. But if you read the contract or rather the “Offer of Employment” it states at the beginning, “On behalf of XXXX I am please to extend an offer of employment to you, details of which are set forth below. This offer is conditional upon the receipt of acceptable references from your current employer and fulfilling the criteria as required by Irish Immigration Laws and work permit regulations.” Still no word about an additional background check, only the note about the references from the current employer. The applicant most likely will be confused about the wording, and will call the recruiter. The recruiter will play down this paragraph and assures the applicant that everything is OK, and that she only have to sign the “Offer of Employment” and the “Terms and Condition”. So, she will sign the papers, resign from her current job and, if necessary, move nearer to the new job.

    A couple of days later she will get an email from a security company from the UK or USA, not from Ireland, that they are conducting a background check on behalf of company XXXX, and they will request a whole bunch of information and documents, amongst those are a so called “Consents” document which has to be signed by the applicant. By signing this document she agrees with everything what this company does and will do with the information. In addition they want that you name a so called character reference. That must be a person which knows the applicant at least three years and must not a relative.

    The worse thing here is, that she doesn’t know anything about this security company, and it’s hard to get any information about it, because it’s not an Irish company.

    The following handling is unbelievable and like a nightmare, multiple agents, she has repeatedly upload the documents like passport, certificates etc. on a website. If they are questions she can call the agent, which is quite expensive and tedious because of the fact that the agents are changing, or write emails, which isn’t less tedious.

    This whole procedure seems to me illegal. The applicant gets tricked, and has then no choice, and the worse is, that the applicant gets no information what actually happened – who will be called, what was said etc.

    It turned out that these security companies are working with a specific enquiry technique. That makes perfectly sense, because if they call a company or private person in Spain, France, Germany etc. they actually won’t get any information, but if they phrase their question as fact and asking for a confirmation, that’s a different situation. In other words, they claim something about the applicant. The problem here is that the applicant doesn’t know anything about the details, the applicant never gets a protocol or copy of the results, but may get in loads of difficulties without having done anything wrong.

    My questions are

    a) Is it legaly OK, that an applicant gets tricked / forced to sign the consense document?

    b) What is the legal situation when a company hires a security company abroad to conduct background checks?

    Thank you in advance.

    Regards,

    Wolf.

  3. Wolf

    I think the issues you raise are likely to relate specifically to non-Irish or non-EU individuals being hired for certain jobs in Ireland.

    In relation to the questions you ask, you should take legal advice if you have concerns (I cannot give legal advice here).

    You could also make enquiries with the Data Protection Commissioner. He has published a brief note on this issue here: http://dataprotection.ie/viewdoc.asp?DocID=636

    Rossa

  4. Hello Rossa,

    Thank you for your answer.

    What I described applies to anybody how seeks employment with one of these big companies here in Ireland. The issue isn’t background check yes or no. The issue is that they trick you in their contracts, as described above.

    I’m sorry that my questions seemed to ask for legal advice, that wasn’t my intention. I hoped that, maybe, I get a legal pointer in regards to this specific constellation: Subsidiary of big US company in Ireland; Applicant Non-Irish, but from the EU; Security Company, who does the background check, from the US or UK; Applicant doesn’t get in advance informed about such background checks, but after she signed the contract.

    Anyway, I can imagine that even if you wanted to give a general account about the legal situation in this regard, it wouldn’t be by far to complicated.

    I will take your advice and seek legal advice.

    Again, thank you very much for the quick response.

    Regards,

    Wolf.

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