With INMO director of industrial relations Phil Ní Sheaghdha

Query from member
I have recently been notified by my employer that I have to provide them with evidence of Garda clearance. I have been employed in this hospital, which is a HSE Care of the Elderly facility, since 1989. I have asked for clarification as I understand this is a voluntary process, but my employer says I have to provide it. I would be grateful if you could clarify this for me.

Reply
Yes, you are correct. Garda clearance for employees who were employed prior to 2009 is covered by the voluntary process, except in children’s services, where it has been mandatory under the Child Care Act since 1991.

What this means is that currently neither the HSE, nor the voluntary hospital, as your employer, have legal authority to alter your contract of employment retrospectively.

However, it is different if you are being recruited. They can request the Garda clearance on recruitment. Likewise, anybody who has been recruited since 2009 has been subjected to this procedure.

We have recently met with the HSE and they advised us that there will, in the very near future, be legislation in place to allow the authority to retrospectively seek Garda clearance. This legislation is not in place as yet. When it is in place, the INMO, and other trade unions, will meet with the HSE to agree the process by which Garda vetting can then be obtained for existing employees.

Until that time, the status quo remains, ie. Garda vetting for existing employees, employed prior to 2009, is a voluntary process. An employee can refuse to provide same in locations other than those which are covered by legislation which allows for this procedure.

Query from member
I work in Care of the Elderly and I have recently been notified by my employer that HIQA require me to provide a statement that confirms that I have the ability to carry out the duties I am employed to do. I have refused but my manager says I have no choice. Do you know what this is about and if it is compulsory?

Reply
The INMO, and other Health Service unions, met with the HSE on this matter in May this year. We objected to this request as no discussion or agreement has been obtained with the trade unions representing employees relating to this change. This objection is based on a party, other than the employer, stipulating changes to conditions of employment.

The INMO reminded the HSE that Bórd Altranais agus Cnáimhseachais na hÉireann (NMBI), sets the regulations for nurses and midwives, and that the employer agrees the contract. We requested that the HSE writes to HIQA and advises them that it is the employer’s responsibility to ensure that employees, in the case of nurses and midwives, are registered with their professional body and also that they are engaged in duties as set out in their contract of employment.

We further advised the HSE that it needs to engage with managers and advise that they cannot insist on self-declarations of fitness to fulfil duties. The HSE has confirmed that it is not requesting the completion of these forms and that should staff refuse to fill them out there will not be any disciplinary consequences. Therefore, again, the advice is that you are not obliged to fill out any form that self declares your ability to perform the job you are employed to undertake.

Questions and answers - Bulletin Board