[Employment] RECRUITMENT – CHECKING FOR CRIMINAL RECORDS
23 April 2021
What is a DBS check and why was the service created?
A Disclosure and Barring Service (DBS) check replaced the earlier Criminal Records Bureau (CRB) check which was initially introduced in 2002 to verify the background of people working with children or vulnerable adults.
A DBS check is a process that is important for safe recruitment. It is especially important when a job requires the applicant to be in a position of trust around children or vulnerable adults.
When should a DBS check be used?
The Government has made clear that having a criminal record should not stop an ex-offender from working, and a minor offence does not mean that someone is necessarily unsafe in other areas. There are guidelines in place to ensure that people with a criminal record are treated fairly. The code of practice published under section 122 of the Police Act 1997 advises that it is a requirement that all registered bodies must treat DBS applicants who have a criminal record fairly and not discriminate automatically because of a conviction or other information revealed.
However, for jobs that involve contact with vulnerable adults - such as the elderly or disabled or when working with or around children - a DBS check is the only way to ensure that the person you employ is not a danger. It is designed to prevent people being abused by others who see a position of trust as an opportunity to do just that.
Which laws should companies be wary of breaching when carrying out DBS checks?
Carrying out criminal records checks for prospective employees can be part of the recruitment process and therefore not unusual. Companies should consider the fact that their ability to ask prospective employees about their criminal record history during the recruitment process is severely limited by:
Data protection law, in particular the General Data Protection Regulation (GDPR)
The Rehabilitation of Offenders Act 1974 (ROA 1974), which defines certain criminal convictions as "spent" (expired) after a statutory period has elapsed, and the Exceptions Order which regulates the disclosure of spent convictions in some circumstances.
The statutory regime for obtaining criminal records information from the DBS.
At what stage of the recruitment process should DBS checks be used?
If an employer requires a DBS check, they should request this once an offer of employment has been made. The offer of employment can be made conditional upon the provision of a satisfactory DBS check.
How to obtain a DBS check?
If a basic check (see below) is required, you can ask the individual to apply directly to DBS (if they work in England or Wales) or you can carry out the check via a specialist organisation, with the applicant’s consent. The DBS Code of Practice requires that all companies using the DBS service have a written policy on the recruitment of ex-offenders. The company should provide the applicants with a copy of its written policy on the recruitment of ex-offenders when sending out offer letters. All applicants must be notified of how a criminal record history might affect their application, and applicants must be made aware of the policy and the requirements for DBS checks.
How many levels of DBS check are there?
The DBS helps employers in England, Wales and Northern Ireland make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups. The DBS decides whether it is suitable for a person to be placed on or removed from a barred list.
An employer can carry out either a basic, standard, or enhanced DBS check:
1. Basic DBS checks contain any convictions or cautions that have not been fully served.
2. Standard DBS checks contain details of all spent convictions, cautions, reprimands, and final warnings that have not been fully served and are (apart from protected convictions and cautions) held on central police records.
3. Enhanced DBS checks show full details of any criminal record as well as the children and vulnerable adults 'barred list' to see if the applicant is prohibited from working with these groups.
Which level of DBS check is suitable for our company?
A basic DBS check is a non-specific check that is available to anyone who requires certification and is available to all employers, at any time. Employers cannot carry out standard and enhanced disclosure unless the role falls under the exceptions set out in the Rehabilitation of Offenders Act 1974 (the Exceptions Order). The DBS has produced a guide on which roles are eligible for standard and enhanced DBS checks which can be found online and fall into five main categories:
· professional roles, for example solicitors and accountants;
· officers or employees in roles requiring the upholding of the law, for example judges and prison officers;
· specified regulated occupations, for example financial services and taxi drivers;
· roles requiring working with children, caring for vulnerable adults or providing health services; and
· roles in which the individual could pose a risk to national security.
All levels of DBS checks must be carried out in accordance with the employer’s written policy on the recruitment of ex-offenders.
In 2019, 1.6 million basic DBS checks were made and 4.2 million standard or enhanced DBS checks were made. Many organisations consider that having information about a candidate’s criminal record will help them make a more informed recruitment decision, whether or not they are required by law to carry out such a check. If you would like assistance with:
· Drafting a written policy on the recruitment of ex-offenders
· Applying DBS checks in a non-discriminatory fashion
· Further information about the process for obtaining DBS checks
Please contact us.
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