While voluntary disclosure of criminal records can be requested during the application process, applicants are only obliged by law to provide this information in certain circumstances. Where these apply, an official check is carried out by the Disclosure and Barring Service (DBS).
What is a DBS check?
A DBS check is a report listing a person's criminal convictions and cautions and was previously known as the CRB (Criminal Records Bureau) check. There are four degrees of checks:
- Basic check: reporting any unspent convictions.
- Standard check: covering spent and unspent convictions, cautions, reprimands and final warnings.
- Enhanced check: standard check plus any information held by local police considered to be relevant to the role.
- Enhanced check including barred lists: enhanced check plus notification of any inclusion on lists of people barred from specific roles or professions.
When is one needed?
The law seeks to strike a balance between rehabilitating people with criminal records and the need for disclosure to protect certain groups of people who may be vulnerable, or to prevent wrongdoing in select professions. While there is no express restriction on an employer seeking voluntary disclosure from an applicant or employee, the Rehabilitation of Offenders Act 1974 restricts the level of information that an applicant or employee needs to disclose.
For example, spent convictions (where the person has not re-offended for a pre-determined period of time) do not normally need to be disclosed. Nor, if voluntarily disclosed, can the employer dismiss the application (or an existing employee) on that basis alone. There are, however, exceptions to this rule. An employer can – and should – through a DBS check, enquire about spent convictions and refuse to employ an individual if the role in question relates to any of the following:
- Professions (eg lawyers, doctors, officers of the court, the police)
- Certain regulated occupations (eg financial services)
- Roles that could affect national security (eg air traffic controllers, certain crown roles)
- Working with children or vulnerable persons (eg teachers, social workers, caregivers)
How to get a DBS check
In January 2018, a new procedure for obtaining a basic check in England and Wales was introduced. Instead of the (sometimes lengthy) process of applying to Disclosure Scotland, a basic disclosure certificate can now be obtained directly through the DBS section of the gov.uk website.
While the obvious time to carry out a DBS check is during the recruitment process, it is then up to the employer to set repeat DBS checks according to the requirements of the specific profession.
- make it clear to the prospective employee early on when and what kind of checks will take place;
- comply with data protection laws when handling criminal records of employees or prospective employees; and
- be aware of whether your business falls within a category that is able to withhold employment from an individual on the basis of a spent conviction.
- operate a blanket dismissal policy; instead consider the nature of a criminal conviction in relation to the specific role, including the context and seriousness of the offence and time passed since;
- dismiss an employee if they voluntarily disclose a spent conviction or one is revealed through a DBS check unless the profession falls within the list of exceptions. This would be in contravention of the Rehabilitation of Offenders Act and could lead to heavy fines and potentially bad publicity; or
- conduct a background check by requiring the employee to take out a subject access request as a condition of employment. This is a criminal offence under the Data Protection Act 1998.
Natalie Ward is an associate solicitor working on employment and immigration at Thrings