Recently there has been an increase in the number of employers using DBS employment checks in the UK. Previously, employers mostly used them in education and healthcare but we now see them in a wider variety of sectors.
This article delves into some of the intricacies of DBS employment checks and outlines how to navigate them.
We haven’t written about this topic before, though we have touched on it when discussing references.
What are DBS employment checks?
Previously known as Criminal Record Checks (CRB), the Disclosure and Barring Service (DBS) is governed by the Protection of Freedoms Act 2012. The service provides a breakdown of an individual’s criminal record, and decides whether they should be barred from working in regulated activity with children or adults.
There are four different types of DBS employment check, each with a different level of detail;
- basic
- standard
- enhanced and
- enhanced with a list check.
Employers typically carry out DBS employment checks to help make well-informed decisions when starting the hiring process. By carrying out these checks, employers are able to confirm a candidate’s good character; this is particularly important for jobs around children or vulnerable adults, or that require the handling of sensitive information.
Running DBS employment checks helps to uphold the public’s trust in the professions with significant responsibilities by ensuring that only suitable candidates fill these roles.
The process of doing DBS employment checks
For a standard or enhanced DBS check, an employer will first give the potential employee an application form, which they return to the employer completed (along with identity documents). The employer sends these things to the Police, which checks the Police National Computer and local Police records to complete the background check. Then the DBS will send to the employer a certificate with the results of the check.
Obtaining a DBS check mostly goes without problem. Most candidates receive a clear certificate without any complications. But irrelevant, mistaken and sometimes even fabricated incidents can lead to the DBS barring an individual, harming both their personal reputation and future career prospects. This issue is worsened by the facts that an employee has only eight weeks to contest a potential barring issue and it can be difficult to get in contact with the DBS.
Hatton James Legal have worked on a number of cases where employers have unnecessarily referred our clients to the DBS.
Convictions that appear
A DBS certificate discloses details of all spent and unspent cautions and convictions unless they are eligible for removal (‘filtering’, in the lingo) upon application by the individual.
Some convictions will always appear on a DBS employment check (list here) because they can’t be filtered out.
Warnings, reprimands and youth cautions won’t appear.
The charity Unlock has a super infographic showing what kind of thing appears on a DBS employment check.
What employment law issues do DBS employment checks cause?
Sometimes, when employment checks come back with something on them and an employer withdraws from the hiring process, an employee may believe that another motive is afoot. They can’t complain about unfair dismissal (not having two years’ service). They may bring a claim of discrimination (sex, age, race etc) or under the Rehabilitation of Offenders Act.
Typically, there isn’t any evidence of discrimination but claims still keep happening; employees figure that once they start looking into the employer’s diversity practices and interview notes, perhaps that evidence will turn up.
As for the Rehabilitation of Offenders Act, it’s unlawful for an employer to act in a prejudicial way because of a spent conviction for jobs where the Act applies. If an employer takes into account a conviction or caution which has been removed then they could be acting unlawfully.
In practice, this doesn’t happen often, as employers are only likely to discover a spent conviction with a DBS employment check (which only apply to roles that are exempt from the ROA.
What can an employee do if they the DBS bars them?
When the DBS bars an employee the stakes are particularly high as their future working within certain professions is on the line when prospective employers run DBS employment checks. This may sound daunting, but there are options. Whilst any barring will stay in place indefinitely if they don’t take action, they may appeal to a tribunal in an attempt to reverse a barring list decision.
An employee is eligible to appeal if:
- the DBS added them automatically following a caution or conviction
- if they believe the DBS has made a legal mistake, or
- barred them based on incorrect information.
The tribunal may remove the employee from the barred list if they accept adding the employee wrongly; another outcome is for the tribunal to refer the employee back to the DBS for another decision.
Image subject to Crown Copyright