This case study involves a university that advertised the job of a teaching fellow. It was advertised as subject to a Disclosure and Barring Service check.
A teaching position in a university is not on the list of exempted professions in the Rehabilitation of Offenders Act (Exceptions) Order 1975. This sets out which jobs (e.g. doctors, nurses, school teachers) are excluded from the protections of the original Rehabilitation of Offenders Act 1974 (ROA) and where employers are entitled to ask about spent convictions as well as unspent convictions.
From the job description, it was clear that the successful candidate was not being asked to engage in any ‘regulated activity’ with children or vulnerable adults as per the Safeguarding Vulnerable Groups Act 2006. Therefore there would appear to be no legal basis for a standard or enhanced DBS check (these reveal spent convictions and cautions).
It was clear to us that the position was covered by the ROA and so the university were only entitled (but not actually required) to ask about criminal convictions which are unspent.
The risk to the university was that anybody in HR who signed off the paperwork authorising a standard or enhanced DBS check for a role which was not actually exempt from the ROA would be making a ‘false declaration’ for the purposes of obtaining a criminal record certificate. This can be classed as a criminal offence under s.123 of the Police Act 1997 and carries a potential six-month custodial sentence.
We made contact with the university and they agreed to look into this.
The outcome was they agreed the role didn’t involve a DBS check; interestingly, their internal paperwork stated that the post didn’t require DBS clearance, and that the mistake was in translating these details into a vacancy. They also agreed to review their internal processes for publicising vacancies to ensure this didn’t happen again!
It is vitally important that employers get the level of check involved for a role correct. This case shows how easily things can go wrong, and the potential legal consequences on the employer if it did. Furthermore, until we intervened, it’s possible that a talented person with convictions would have been dissuaded from applying for the job when they saw that it (wrongly) stated that any appointment would be subject to a DBS check.
- We have guidance on criminal record checks.