Can I require my employees to undergo a DBS check?

The Disclosure and Barring Service (DBS) allows employers to review criminal record information about current or potential employees in order to help judge their suitability to work in certain roles. The DBS provides four different levels of criminal records check:

• Basic

• Standard

• Enhanced

• Enhanced with children and/or adults barred list check

Different roles will require different levels of check depending on the duties to be performed and various risk factors, such as whether the role will give the employee access to confidential data or bring them into close contact with children.

Rehabilitation of Offenders Act (ROA) 1974

Under the Rehabilitation of Offender Act (ROA) 1974 some criminal convictions will become “spent” after a specified period has elapsed. In most cases employers are not allowed to ask about spent convictions and individuals do not need to disclose a spent conviction to a potential employer. The ROA 1974 also makes it unlawful to refuse to employ a person because they have a spent conviction.

However, the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 (the Exceptions Order) sets out exceptions to this rule. Employers recruiting for roles listed in the Exceptions Order may be able to view and consider spent convictions when deciding on an individual’s suitability for a role.

Basic DBS Check

A basic DBS check discloses unspent convictions and conditional cautions only. An employer can require a basic DBS check for any purpose or position, though they must have a legal basis for doing so.

Standard Check

A standard DBS check discloses convictions and cautions which are spent and unspent. To be eligible for a standard DBS check, a role must be included in the Exceptions Order. Examples of positions which may require this level of check include:

• Prison officers,
• Court officers,
• Solicitors, and
• Certified accountants.

Enhanced Check

An enhanced check discloses the same information as a standard check plus any additional information held by local police which is considered relevant to the role. An enhanced check with a barred list check will also indicate whether the individual is on the children and/or adults’ barred list.

To be eligible for an enhanced check, the role must be included in both the Exceptions Order and the Police Act 1997 (Criminal Records) Regulations 2002. If the role is one for which the children or adult’s barred list may be checked, this will also be stated in the Police Act 1997 (Criminal Records) Regulations 2009.

If the role involves carrying out a ‘regulated activity’ (as defined in the Safeguarding Vulnerable Groups Act 2006) with children or vulnerable adults, the employer will have a legal duty to check whether the individual appears on the relevant barred list. If the individual’s name does appear on the list, it would be unlawful for the organisation to employ them or continue employing them. 

Data protection considerations

Employers must have a lawful basis for processing criminal record data and comply with data protection principles. Before requiring a DBS check, employers should assess the role to determine whether they are justified in seeking criminal records information, and if so, the level of disclosure they require and are entitled to request.

The DBS Code of Practice states that individuals should be informed at the recruitment stage that a DBS check will be required, and the potential effect a criminal record history may have on the recruitment decision. Information taken from a DBS disclosure should only be used for the purpose for which it was requested and for which the individual’s consent was given. It must be stored securely, where only those who need to see the information have access. Employers should only retain the data for as long as necessary, usually about six months. In some cases it may be sufficient to only keep a record of whether the DBS check yielded a satisfactory or unsatisfactory result. 

Other considerations

Certain old or minor convictions and cautions are protected, or ‘filtered out’, meaning they will not usually be disclosed on any level of DBS check. Apart from very limited and exceptional cases, employers cannot require individuals to disclose protected convictions.

According to the DBS Code of Practice, employers who process criminal record information should have a policy on employing ex-offenders and be able to show this policy to any employee or applicant who asks to see it.

DBS checks do not have a formal expiry date. It is therefore up to employers to decide how often they will require their employees to repeat the check. For standard and enhanced checks employers may also opt to use the DBS update service.

If you are unsure whether you should require a DBS check, or if you are unsure which level of check you can require it may be worth speaking to a member of our Employment Team. You can email us at employment@warnegoodman.co.uk or call 023 8071 7717.