Employer does a standard Disclosure and Barring Service check for an unregulated role

We’ve recently worked on a case where an individual had a job offer withdrawn following an ineligible check being undertaken by an employer.

The job involved selling IT systems to financial institutions and in his offer of employment the company stated that:

“The company is not regulated by the FCA although a majority of the company’s clients are FCA regulated entities”

Despite this, the company undertook a standard Disclosure and Barring Service check on the individual. When the certificate was returned to the employer, it showed convictions which the individual had not disclosed because they were spent. The company immediately withdrew the job offer.

The individual raised his concerns that the company had undertaken an ineligible check and was told that as a result of its customers being regulated by the FCA, they were required to carry out standard DBS checks on all their staff.

We wrote to the company setting out why we believed a standard DBS check was ineligible, namely that the role the individual was being employed to do was not regulated by the FCA and involved business to business sales. Although the company’s customers could request that criminal record checks be done on the company’s staff members, the checks had to be at the appropriate level which, in this case, was a basic check.

We made it clear that, as a result of an ineligible check, they had been made aware of spent convictions that they shouldn’t have taken into account as part of their recruitment process. The company took the advice we’d provided on board and sought further advice from their legal department.

A few days later we heard back from the company who confirmed that as a result of our information, together with their own research, they were now aware that they were not legally entitled to carry out a standard DBS check. They had contacted the individual concerned and had reinstated the job offer.

Lessons

This case shows that organisations are not always clear about the level of criminal record check that they are legally entitled to carry out. Not only can this constitute a criminal offence in its own right, but it can also result in the disclosure of spent convictions which should not be taken into account unless the role is exempt from the Rehabilitation of Offenders Act 1974.

We are now looking to raise this case with the DBS to help them to improve their processes in stopping these types of ineligible checks from being issued.

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Christopher Stacey