Criminal record checks
A criminal record is a record of a person's criminal history, with over 20% of the working age population recorded as having a criminal record recruiting safely and fairly can be a challenge.
- Scotland and Northern Ireland are covered by different agreements - Disclosure Scotland and Access Northern Ireland - although Disclosure Scotland also delivers a service to employers in England and Wales for carrying out a Basic Disclosure.
- An employer should only ask for a Disclosure and Barring Service (DBS) check on applicants who are successful. They are entitled to withdraw a job offer if the results of the check show the applicant is unsuitable or barred from working in regulated activity (if applicable).
- It is an offence for an employer to knowingly allow a barred person from engaging in regulated activity with the group with which they are barred from working (i.e. children or vulnerable groups, or both). It is also an offence for a barred person to seek work with the group with which they have been barred from working.
If an employer decides to carry out a criminal record check, having determined the level of disclosure for which the position is eligible, the main types available are:
Basic Disclosures (Basic Check) are available for roles that are covered by the Rehabilitation of Offenders Act 1974; which is actually most roles. Basic Disclosures contain details of only 'unspent' cautions or convictions. They are available only from Disclosure Scotland who delivers a specific service for employers in England and Wales. An individual or the employers (with the individual's consent) can apply for a Basic Disclosure from Disclosure Scotland directly.
A Basic Disclosure should not be confused with a Standard Disclosure (Standard DBS check), which can only be carried out on roles which are 'exempt' from the Rehabilitation of Offenders Act 1974(ROA).
The Disclosure and Barring Service (DBS) through its criminal record checking service, helps employers with recruitment in more sensitive roles to prevent unsuitable people working with children or vulnerable groups; and also roles which involve a greater deal of trust such as lawyers and regulated financial roles. These roles are deemed 'exempt from the ROA. It is very important for employers to first establish whether a role is eligible for a DBS check before applying for a Standard or Enhanced Disclosure.
Standard Disclosures (Standard DBS checks) are available from the Disclosure and Barring Service (DBS) and contain details of all convictions, cautions, reprimands and final warnings which are not 'protected' and are therefore eligible for filtering. Standard Disclosures are available for jobs and activities listed in the Exceptions Order.
Enhanced Disclosures (Enhanced DBS checks) are also available from the DBS and contain details of all convictions, cautions, reprimands and final warnings which are not 'protected', and may also include 'other relevant information' (police intelligence) which a chief police officer of the force that holds the information reasonably believes to be relevant to the role applied for and, therefore, ought to be included. Enhanced Disclosures are only available for certain jobs and activities listed in both the ROA Exceptions Order and also the Police Act 1997 (Criminal Records) Regulations.
Enhanced Disclosures with children's and/or adults' barred list check(s) include the same criminal record information as Enhanced Disclosures, but also detail whether the person is barred from working with either children or vulnerable adults or both. To be eligible to request a check of the children's or adults' barred lists, the position must be eligible for an Enhanced Disclosure and also specifically listed in the Police Act 1997 (Criminal Records) regulations as eligible to check against the appropriate barred list(s).
Applications for Standard and Enhanced Disclosures have to be made by the employer either directly, if they are a Registered Body, or through a Registered Body providing an umbrella service sometimes known as an Umbrella Body. The certificate is sent directly to the individual who must then hand it to the employer. DBS charges a fee to process applications for these checks, charges will depend on the level of check, for some volunteers a DBS criminal record check may be free.
Enforced Subject Access Request
It a criminal offence for an employer to require an applicant, existing member of staff or third party, to make an enforced subject access request and then share the information with the employer. An enforced subject access request normally involves the person obtaining a copy of their full criminal record directly from the police, prison, probation service or courts. Employers who carry out an enforced subject access request may now face prosecution by the Information Commissioner's Office (ICO).