The Disclosure and Barring Service (DBS), which replaced the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) in late 2012 is there to help employers make safe recruitment decisions, and prevent unsuitable people from working with vulnerable groups, including children.
The DBS are responsible for:
- Processing requests for criminal records checks which they do by searching police records and, in relevant cases, barred list information, and then issue a DBS certificate to the applicant and employer to help them make an informed recruitment decision.
- Deciding whether it is appropriate for a person to be placed on or removed from a barred list for England, Wales and Northern Ireland. More details about barring are here.
From 17th June 2013 the DBS introduced ‘portable’ CRB checks, which removes the need for multiple or repeated checks each time an individual moves jobs. Once an individual has been CRB checked a certificate will be sent only to the individual, and an online update service was also introduced that makes it easier for employers to assess candidates.
Individuals will need to pay £13 annually to subscribe to the service and employers will be able to check online whether the candidates CRB/DBS certificate is up to date (with the individuals’ consent and where the employer is entitled to obtain a DBS check of the level and type that they need). This service will be free to employers, but they will not receive a duplicate copy of the individuals’ check, but will be able to print out relevant details.
Criminal convictions in general
- Employers cannot refuse to employ an individual because they have a ‘spent’ conviction. A refusal to employ a ‘rehabilitated’ person on the grounds of a spent conviction is unlawful under the Rehabilitation of Offenders Act 1974.
- Certain jobs – e.g. those posts involving ‘regulated activity’ with children or vulnerable adults – require a job applicant to disclose all convictions, even if spent. It is the responsibility of the employer to explain to a job applicant that the job falls into an excluded category and advise him or her that the disclosure of any spent conviction is required. Such ‘excepted’ jobs include doctors, nurses, midwives, solicitors, barristers, police officers, accountants, teachers and those working with vulnerable adults and children.
- The law does not give a remedy, however, for an individual who is refused a job because they have a spent conviction. There is nothing in employment law. The only possibility is that the individual takes action against the employer in the civil courts for breach of statutory duty. Individuals who are already employees of that employer, however, will have protection under unfair dismissal legislation if they are unfairly dismissed.
- It is generally lawful (with some exceptions) to refuse to employ someone who has an ‘unspent’ conviction. However, employers should consider whether the offence the individual has been convicted of is relevant to the job and whether it is a one-off event.
However, in January 2016, the High Court declared that the criminal record disclosure scheme is incompatible with the Human Rights act; following two individuals who claimed their careers in ‘excepted’ job categories had been ruined by having to diclose minor criminal convictions to their employers. In 2013, the Government introduced a filtering process which allowed single convictions for non-violent and non-sexual offences where there was no sentence, did not need to be dislcosed after 11 years (or five and a half years if the person was under age 18 at the time of the offence). At least one of the claimants, however, had more than one minor conviction, and so full disclosure was required. The High Court has asked the Goverment to address these faults in the system, although the Home Office said it would consider appealing the decision. Until anything further happens, the disclosure shceme will continue to operate as it does now.
- Convictions are ‘spent’ when a period of time elapses after the sentence has been served – the length of time depends on the nature of the sentence imposed (and certain convictions are never spent). From 10th March 2014, the rehabilitation periods for criminal convictions are being reduced. If a job applicant has been sentence to a prison sentence for up to 6 months, at the moment they must disclose their criminal record for 7 years from the date of conviction now – From 10th March 2014 the job applicant will only have to disclose their criminal record for 2 years starting from the end of the sentence. These new periods will apply to a conviction/caution before, on or after 10th March 2014.
- The DBS hold a list of people barred from working with children and vulnerable adults. An employer that knowingly allows a barred individual to work in a ‘regulated’ activity with children (under 18) or vulnerable adults will be committing a criminal offence.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.