Disclosure Scotland represents Scottish Ministers when making decisions relating to referred individuals who have committed harmful conduct in Scotland.

As a provider of regulated work, as defined by Schedules 2 and 3 of the Protection of Vulnerable Groups (Scotland) Act 2007, Falkirk Council has to refer individuals to Disclosure Scotland in certain circumstances. This legal duty to refer is included in section 9 of the Protection of Vulnerable Groups (Scotland) Act 2007.

The duty to refer to Disclosure Scotland exists regardless of the involvement of other agencies, for example, the police, regulatory bodies or local authorities.

Information on the types of conduct, harm and how to make a referral can be found in How to make a referral to Disclosure Scotland 

The duty to refer exists when an individual in a regulated work role is responsible for one of the following:

• harming a child or protected adult, placing a child or protected adult at risk of harm 
• inappropriate behaviour involving pornography
• inappropriate behaviour of a sexual nature involving a child or protected adult
• giving inappropriate medical treatment to a child or protected adult 

There are different ways 'harm' can be defined. It's important to remember that people can cause a risk of harm without actually doing anything directly.

Examples of harm include:

• physical harm (like inappropriate physical restraint or assault)
• psychological harm (like emotional abuse)
• psychological/emotional harm (for example, placing a child/protected adults in a state of fear, alarm or distress)
• damage to property, rights or interests, such as theft, fraud, embezzlement or extortion

Examples of behaviour which lead to a risk of harm include:

• attempting to harm (even if they do not succeed)
• trying to make someone else cause harm
• encouraging someone to self-harm

reckless behaviour or incompetence that may cause someone to be harmed, even if they did not mean it to

Placing at ‘risk of harm’ is a wide ranging category but may include behaviour or incompetence that may cause someone to be harmed (even if unintentional and/or where harm does not actually occur).

These lists are not exhaustive.

The conduct does not need to have happened in the workplace. But it must be something the organisation becomes aware of, that then leads to one of the actions below.

A referral to Disclosure Scotland about a person’s conduct only needs to be made if the behaviour meant that the employee or volunteer involved:

• was dismissed as a result
• would have been dismissed but left before they could be. For example, they resigned from the organisation immediately after the incident(s) or before a disciplinary process is complete, or when an individual’s probation or fixed term contract is not extended because of their conduct
• was transferred permanently away from work with children or protected adults. For example, being moved to another role in the organisation that does not involve regulated work with those groups

If any of these actions were taken, the referral must be made within 3 months of the decision of Falkirk Council to either dismiss/permanently remove the individual from regulated work, or within 3 months of the date that the individual would have been permanently removed had they not left.

The 3 month period to submit referrals to Disclosure Scotland is a legal requirement, regardless of any dismissal appeals or appeal periods etc. Even where an individual appeals against a decision to permanently remove from regulated work, the 3 month period begins on the date of the decision to either dismiss or permanently remove them from regulated work.

The type of conduct committed by the individual must be in relation to the group that the individual is in regulated work with, whether that regulated work is for Falkirk Council or another organisation. For example, if an individual is permanently removed from a position due to assaulting a child, but they are only in regulated work with protected adults, it is not possible under current legislation for the organisation to refer that individual to Disclosure Scotland.

Disclosure Scotland have some examples on their website to help to decide when to refer.If you are considering making a referral to Disclosure Scotland, you must discuss this with your Service HR Business Partner prior to any referral being submitted.  Advice may also be required from Governance.

An employer referral form is available on the Disclosure Scotland website. This asks for:

• proof of the person's identity
• details of the type of regulated work they're employed to do
• the person's PVG scheme number, if they have one
• information on the harmful behaviour
• details and documentation of the employer's investigation and outcome

The referral should not identify any children or protected adults by name (for example, victims and witnesses). You should use a coded reference (e.g. child A, age 12).

When the details have been filled in, email the form and any supporting documents to pucorrespondence@assured.systems.gov.scot, or print it out and post it to the address provided on the form. 

There’s more information on the Disclosure Scotland website, including the form used to submit a referral.

Disclosure Scotland can provide advice on whether a specific situation means a referral must be submitted. You can contact them for help: