Practical guidance – Doing the correct level of criminal record check

 

Aim of this guidance

This guidance is for employers that carry out formal criminal record checks as part of their recruitment process.

The aim of this guidance is to provide information and tools to help you understand what level of criminal record check you might be able to carry out when you’re recruiting for a role, as well as making sure that you don’t carry out an incorrect level of check. The guidance is particularly focused at determining when you can (and can’t) carry out a standard or enhanced check through the Disclosure and Barring Service.

This forms part of our guidance on carrying out criminal record checks.

Why this is important

  • Any employment position can be subject to a basic criminal record check.
  • Only certain positions can involve a standard, enhanced or enhanced with barred list criminal record check.
  • The DBS service is underpinned by law – each application involves the signing of a declaration that confirms that the position is legally eligible for that level of criminal record check.
  • It is a criminal offence to knowingly submit an application which is not eligible.
  • A number of employers have carried out ineligible checks.
  • People with spent convictions do not have to disclose them for most jobs, and they won’t be disclosed on basic criminal record checks.
  • People with spent convictions will normally need to disclose when applying for roles that involve standard or enhanced criminal record checks as they’ll usually be disclosed on these levels of checks (unless they are filtered).
  • A small proportion of people with criminal records are barred from carrying out regulated activity – these roles involve enhanced with barred list checks.
  • Registered bodies are required to comply with the DBS code of practice.
  • The DBS service is underpinned by law. When a registered body signs the declaration on the application form, they are confirming that the position is eligible for that level of check. It is a criminal offence to knowingly submit an application which is not eligible, and this covers employers who use Umbrella Bodies to submit applications on their behalf.

Do you need to check?

Before you advertise a role, you should decide whether or not you wish to carry out a criminal record check on the successful applicant.

There are very few roles where you’re legally required to conduct a criminal record check.

If you wish to undertake a criminal record check, the next question is to determine what level of check the role you’re recruiting to is eligible for. The level of check will vary depending on the role.

Most jobs in England & Wales are covered by the Rehabilitation of Offenders Act 1974, and so an employer would be able to carry out a basic check but not a higher level.

 

DBS code of practice

If you’re doing standard or enhanced checks, you need to make sure that you comply with the DBS code of practicewhich states, amongst other things, that:

“Registered Bodies must:

  1. Use all reasonable endeavours to ensure that they only submit Criminal Records check applications in accordance with the legislative provisions which provide eligibility criteria for relevant positions or employment.
  2. Ensure that before allowing a DBS check application to be submitted they have assessed the role to be eligible under current legislation, correctly applied the right level of check, and correctly requested the appropriate barring list information.
  3. Ensure they are legally entitled to request any DBS product being applied for.”

If you’re a small employer and are using a registered body that’s acting as an umbrella body, the code directly applies to the registered body, and they will place reliance on you to provide them with accurate information to comply with their obligations.

 

The types/levels of checks

As this guidance is aimed at employers, it covers the types of checks that employers can use as part of their recruitment process. There are other forms of vetting such as security clearance and prison vetting which, depending on the role, you may need to factor in to your recruitment process.

With this in mind, for the purposes of this guidance there are four levels of criminal record check:

  1. Basic
  2. Standard
  3. Enhanced
  4. Enhanced with barred list
The level of check you do for a particular position will depend on the role that you are recruiting for

 

Basic check

Any role is able to require that the applicant offered the role agrees to a basic disclosure as part of the recruitment process. For employment positions in England & Wales, they can be carried out on roles covered by the Rehabilitation of Offenders Act 1974

Key facts about basic checks:

Technically, any role can involve a basic check. Common roles and industries that use them include:

  • the airline industry
  • courier companies
  • telecommunications
  • non-regulated financial service positions

There are more listed in the types of roles section below.

A basic check should be carried out once the applicant has accepted a conditional offer of employment and they have completed a self-disclosure form in relation to unspent convictions (i.e. a question for a type 1 role).
A basic check reveals unspent convictions. They do not disclose spent convictions.
A basic check can currently by obtained through Disclosure Scotland (who operate this level of check in England & Wales on behalf of the DBS) with the permission of the applicant. This is expected to transfer over to the DBS in early 2017.

 

Standard check

If you are recruiting to a position that is exempt from the Rehabilitation of Offenders Act 1974, you can carry out a standard check as part of the recruitment process

Key facts about standard checks:

Types of roles that are eligible for a standard level of check are featured in the Rehabilitation of Offenders Act (Exceptions) Order 1975. Common positions that can involve standard checks include:

  • Security industry licence (on application for a licence to the Security Industry Authority)
  • Solicitors and Barristers (on entry to the profession)
  • Accountant (chartered/certified) (on entry to the profession)
  • Veterinary surgeon (on entry to the profession)
  • Financial Conduct Authority ‘approved person’ role (specified roles, not simply bank clerks or cashiers)

There are more listed in the types of roles section below.

A standard check should be carried out once the applicant has accepted a conditional offer of employment and they have completed a self-disclosure form in relation to convictions and cautions that have not been filtered (i.e. a question for a type 2 role)
A standard check reveals both unspent and spent convictions, as well as cautions. However, it doesn’t reveal anything that is now ‘protected’ (i.e. filtered)
A standard check is obtained through the Disclosure and Barring Service via a registered body.

 

Enhanced check

If you are recruiting to a position that is exempt from the Rehabilitation of Offenders Act 1974, and included in Police Act regulations, you can carry out an enhanced check as part of the recruitment process

Key facts about enhanced checks:

Types of roles that are eligible for an enhanced level of check are featured in the Rehabilitation of Offenders Act (Exceptions) Order 1975 and Police Act regulations. Common positions that can involve enhanced checks include:

  • Driving instructor
  • Librarian (if expected to be involved in supervised teaching, training or instruction of children)
  • Lifeguard

There are more listed in the types of roles section below.

An enhanced check should be carried out once the applicant has accepted a conditional offer of employment and they have completed a self-disclosure form in relation to convictions and cautions that have not been filtered (i.e. a question for a type 2 role)
An enhanced check reveals both unspent and spent convictions, as well as cautions. However, it doesn’t reveal anything that is now ‘protected’ (i.e. filtered). An enhanced check will also disclose any relevant approved information held by the police – this is a discretionary part of the process that looks at information such as allegations and arrests and the police will decide whether it is relevant to the position when deciding whether to disclose it.
An enhanced check is obtained through the Disclosure and Barring Service via a registered body.

 

Enhanced with barred list check

If you are recruiting for a position that is classed as regulated activity, you should carry out an enhanced with barred list check

Key facts about enhanced with barred list checks:

Types of roles that are eligible for an enhanced with barred list check are those classed as regulated activity. Common positions that can involve these checks includes:

  • School teacher
  • Care worker
  • Doctor
  • Nurse
  • Social worker
  • Ambulance driver
  • School bus driver

There are more listed in the types of roles section below.

An enhanced with barred list check should be carried out once the applicant has accepted a conditional offer of employment and they have completed a self-disclosure form in relation to convictions and cautions that have not been filtered (i.e. a question for a type 2 role)
An enhanced plus barred list check reveals both unspent and spent convictions, as well as cautions. However, it doesn’t reveal anything that is now ‘protected’ (i.e. filtered). It will also disclose any relevant approved information held by the police – this is a discretionary part of the process that looks at information such as allegations and arrests and the police will decide whether it is relevant to the position when deciding whether to disclose it. Depending on whether you request a check against the childrens’ or adults’ barred list (or both), it will provide details about whether the applicant is on those.

An enhanced plus barred list check is obtained through the Disclosure and Barring Service via a registered body.

 

Types of roles that often involve certain levels of checks

The lists below are intended to give an indication of the types of roles that involve certain levels of checks. They are not meant to be comprehensive. If you see a role listed, it doesn’t mean that it’s definitely eligible for that level of check. Likewise, if you don’t see a role listed, it doesn’t mean it isn’t eligible for that level of check.

Technically, any role can involve a basic check. Common roles and industries that use them include the airline industry, courier companies, telecommunications companies and non-regulated financial service positions.

Accountants (chartered/certified) (on entry to the profession), Barristers (on entry to the profession), Financial Conduct Authority ‘approved person’ roles (not bank clerks or cashiers), becoming a member of the Master Locksmiths AssociationSecurity industry licences (on application for a licence to the Security Industry Authority), Solicitors (on entry to the profession), Traffic wardens, Veterinary surgeon (on entry to the profession).

Driving instructorsLibrarians (if expected to be involved in supervised teaching, training or instruction of children), School governorsLifeguards.

Ambulance drivers, Care workers, Doctors, NursesSchool bus drivers, Social workers, Teaching assistants.

There is a useful A-Z of job roles and their eligibility for different levels of check on Unlock’s information site for individuals

Regulated activity

Regulated activity is a phrase that refers to the majority of roles that involve enhanced plus barring checks.

This guidance is not aimed at going into the detail of ‘regulated activity’, and this will be covered elsewhere on this site in the near future.

In the meantime, there are some useful links below:

 

Roles not necessarily eligible for standard or enhanced checks

Alongside the types of roles that often involve certain levels of checks, there are some roles where employers tend to get confused and/or misinterpret what level of check they can do for that particular role. The result is that the employer usual ends up trying to do a higher level of check than what they’re legally allowed to do.

Examples of roles that are not necessarily eligible for standard or enhanced checks include:

  • Roles working with the public – employers often interpret this as meaning the work involves working with children and vulnerable groups. The vast majority of people work ‘with the public’ in one way or another and that doesn’t necessarily equate to ‘working with children or vulnerable groups’.
  • Going into people’s homes – for example, various tradespeople (electricians, meter readers, plumbers) go into people’s homes on a one-off basis. These would normally be eligible for basic checks.
  • University lecturers – see this example
  • Office workers – see this example
  • Charity workers – see this example
  • Bank cashiers – most jobs in banks and financial services are not covered by the ‘approved person’ scheme overseen by the Financial Conduct Authority (and where a standard check can be carried out). Instead, banks can do basic checks.
  • Working in the financial industry – see this example
  • HGV drivers – see this example

Note: The aim of the list above is to show roles that are not necessarily eligible for standard or enhanced level checks. It doesn’t mean that specific roles matching the above titles cannot be – it just means you shouldn’t assume that they are by default.

The legislation for criminal record checks recognised that there was a need for different levels of checks, and this is why basic checks can be carried out on all roles, with higher levels of checks only for certain roles, for example where there is one-to-one unsupervised work with children.

 

Step-by-step guide to working out the level of check for a particular role

The level of check that you can carry out will vary depending on the particular role. It is important to make sure that you are completely clear on the type of check you are entitled to request before you advertise the position (which is part of our checklist for specific vacancies).

It’s not possible for this site to provide answers to individual queries. However, there are tools, guidance and contact that can help:

  1. Step 1 – Assume the ROA applies
  2. Step 2 – DBS tool
  3. Step 3 – DBS guidance
  4. Step 4 – Get advice from a registered body
  5. Step 5 – Get advice from the DBS
  6. Still not clear?
  7. Checks for overseas applicants

Step 1 – Assume the ROA applies

Start by assuming that the role is covered by the Rehabilitation of Offenders Act 1974. That’s how the law works – all positions are covered by that legislation unless they are exempt from it.

This means that you start from the position that you can carry out a basic criminal record check.

Step 2 – DBS tool

The DBS has an online tool – which is titled ‘Find out if you can check someone’s criminal record‘ (but it’s often referred to on this site as the ‘DBS eligibility tool’).

You can use this tool to help you work out what level of criminal record check you can apply for for a particular role.

  1. It only covers roles in England & Wales
  2. It was made available in August 2016 and is still subject to feedback
  3. There is a caveat on the tool – it says “This checker doesn’t cover every role. Contact DBS if you’re still not sure whether you can request a check”.

Below are some images of the tool, showing:

  1. the landing page
  2. a results screen (1) showing eligibility for an enhanced with barred list check
  3. a results screen (2) showing no eligibility for a standard or enhanced check (and so eligible for a basic check)
findoutdbslanding

Landing page – Click to enlarge

findoutdbsresult1

Results screen 1 – Click to enlarge

findoutdbsresult2

Results screen 2 – Click to enlarge

 

 

 

 

 

Step 3 – DBS guidance

The DBS maintains a guide on eligibility. This is regularly updated. It links closely to the tool that they oversee.

The DBS guide provides details of the positions that are eligible for a standard or enhanced check. It is not comprehensive and only gives an indication of the employments that are included in the Exceptions Order.

Step 4 – Get advice from a registered body

If you’re a registered body, you should have skills and expertise internally within your organisation to advise on the level of check that can be carried out for a particular role.

If you’re not a registered body, to do a standard or enhanced DBS check you’ll need to use a registered body that operates an ‘umbrella function’ – this means they conduct checks on behalf of smaller employers. In this situation, as an employer you’re a ‘customer’ of the registered body, and it’s part of their role to provide advice on the level of check that can be done for a particular role. Ultimately, they have to make a legal declaration when they’re submitting the application for a check to the DBS, so they need to be confident that the role is eligible.

Step 5 – Get advice from the DBS

The tool and guidance from the DBS both suggest that you contact them if you’re not sure about what level of check you can carry out.

You can contact DBS customer services:

 

Still not clear?

Once you’ve followed steps 1-5 above, if you’re still not clear, we’d like you to send us the details.

Although we cannot make decisions on your behalf, we can look into the reasons why you’ve not found an answer to what level of check you’re able to carry out, and we will look to provide advice and guidance.

Email the following details to recruit@unlock.org.uk:

  1. The organisation you work for
  2. The role you’re recruiting for (including a job description and responsibilities)
  3. The level of check you think the role can involve
  4. The result you received from using the DBS tool (and how you got to that result – what options did you choose?)
  5. The parts of the DBS guidance you think are most relevant
  6. The details of the response you’ve received from the registered body/umbrella body (if you’re not one yourself)
  7. The details of the response you’ve received from the DBS

Checks for overseas applicants

We plan to cover doing criminal record checks for overseas applicants in separate guidance. In the meantime, the Home Office has helpful guidance on who can apply, how to apply and contact details.

 

The DBS role in stopping ineligible checks

The DBS plays an important role in stopping ineligible checks.

Between March 2012 and February 2014, the DBS had written to counter signatories on 3,311 occasions under the Ineligible Applications Process, and 1,385 applications were subsequently not completed (42%).

 

Don’t just do the right check – explain it right too

Too often, employers are unclear in their adverts about the level of check

 

Good practice tips

  1. When you’re advertising for a particular position, the specific level of check should be made clear in the advertisement and vacancy details.
  2. Follow our step-by-step guide if you’re not sure about the eligibility of a particular position.

 

Examples of bad practice

To illustrate why this guidance is important, we’ve included some examples where practice could (and should) be improved.

councilcrb

This extract of a BBC article shows how councils were carrying out levels of checks on positions not eligible for them

 

 

Frequently asked questions

This section will be added to over time, responding to the common questions we receive about this guidance.

 

Useful resources

  1. The DBS online tool – Find out if you can check someone’s criminal record
  2. The DBS guidance on eligibility for DBS checks

 

More information

  1. There is more information about carrying out criminal record checks, which forms part of the practical guidance section of Recruit!
  2. For further advice about this guidance, please contact us.

Has this been useful?

Let us know if this guidance has been useful. Have you used it in your organisation? Has it helped you to change your policy or practice? Please let us know so that we can show the impact of this guidance and continue to help others.

You can let us know by:

  1. Writing a comment on this page (see below)
  2. Sending your feedback directly to us
  3. Emailing us at recruit@unlock.org.uk
This guidance was last updated in September 2016

Is there anything wrong with this guidance? Let us know – email recruit@unlock.org.uk