The Disclosure and Barring Service (DBS) provides charities with criminal record information to help assess the suitability of individuals it recruits, including trustees, employees and volunteers.
There are different levels of checks. Jobs that involve caring for, supervising or being in sole charge of children or vulnerable adults require enhanced DBS checks. Charities could face criminal sanctions for knowingly employing a barred individual, along with potential breach of trustees’ duties, and reputational damage.
Can enhanced checks be carried out for everyone?
No, you need to be careful to apply for the correct level of check. It may be tempting to carry out enhanced checks for all volunteers as there is no charge, but eligibility depends on the duties carried out. Enhanced level checks are appropriate for roles involving a high degree of contact with children or vulnerable adults. Generally the work involves regularly caring for, supervising, training or being in sole charge of such persons.
To be eligible for a standard or enhanced DBS check, the role must be listed in the Exceptions Order 1975 to the Rehabilitation of Offenders Act 1974 (ROA). The DBS has produced a guide, DBS check: eligible positions guidance, on which roles are eligible.
The limits of a DBS disclosure
There are limits to DBS disclosure. Where criminal convictions are revealed by a DBS check:
- The disclosure will only show basic details and the context of the offence will not be given
- The DBS certificate is accurate only to the date of issue. Updated certificates can be maintained online, which employers can access if an individual is a member of the online Update Service
- Disclosure may omit details of overseas convictions
The nature of the position may mean the employer wishes to know on an ongoing basis if an employee is guilty of an offence. In such cases, you should include an ongoing obligation to disclose this information in the individual’s contract.
Fair use and handling of disclosure information
Charities need to be aware of the DBS Code of Practice, which requires employers who wish to request disclosure information to:
- Make sure in application forms that applicants know that a disclosure would be required
- Ensure that applicants are informed of the potential effect a criminal record may have on the recruitment process and any recruitment decision
- Discuss points revealed in the disclosure before withdrawing a job offer
- Provide a copy of the Code to an applicant if they request this
Weight to attach to a criminal record
The weight that an employer should attach to a criminal record when making decisions depends on the circumstances. There may be charities where having a particular criminal record history should prevent a person from being appointed to a role. For example, if a person’s name appeared on a barred list and they would be supervising and in charge of children then it may be unlawful to do so.
In cases where an employer is not required to follow sector specific guidance or regulations, Nacro (the crime prevention charity) recommends that employers do not have a blanket ban on employing ex-offenders. Instead, they should carry out a risk assessment relevant to the position and circumstances. Factors to take into account include, if the conviction/matter revealed is relevant, the seriousness of the offence, length of time since it was committed, if there is a pattern to take into account, if the applicant’s circumstances have changed since the offending behaviour, the circumstances of the offence and explanation given by the individual.
Refusing to employ someone if they have a criminal record
Unless there is legislation or sector specific guidance on how an employer deals with a CRB disclosure, charities must exercise their own judgment when deciding if they should employ someone with a criminal record.
If the conviction is spent an employer may not refuse to employ someone unless the position is in the Exceptions Order. If the conviction is spent, but falls within the Exceptions Order, then an employer may refuse to employ such a person and in some circumstances it will be a criminal offence to employ them. If the conviction is not spent, an employer may decide not to employ that individual. There is very little in the way of a remedy for an individual who is not employed on the basis of an employer’s knowledge of a criminal offence.
Laura Mcfadyen is a partner based in Stephens Scown’s Exeter office. She is an HR and employment law specialist. For more information please contact Laura on 01392 210700 or email employment@stephens-scown.co.uk.