We’ve recently worked on a case where an individual had been asked by his employer to have an enhanced DBS check.
The individual had worked for the company for 13 years and when he initially applied for the job he had not been asked about his criminal record nor had any formal criminal record checks been carried out. He was aware, however, that the company were intending to start doing basic checks on all new members of staff.
This gentleman was employed as a HGV driver and his job involved delivering food to kitchens in a wide range of organisations including schools. The schools he delivered to had arrangements in place which meant that he did not have unsupervised access to children. In light of this information, he did not feel that his job was eligible for an enhanced check. His criminal record was from many years ago and was now spent, meaning it would not be disclosed on a basic check, but it would not be filtered, meaning it would still show on an enhanced disclosure.
From the information provided, we agreed that the check was likely to be ineligible and we contacted the DBS on his behalf. We explained to them that the check was likely to be ineligible on the following basis:-
- The gentleman concerned would be making deliveries all over the North East and would be likely to deliver to one school each week. However, it was unlikely that he would be delivering to the same school more than once every three months.
- Of the 500-600 schools he delivered to, all but one had agreements in place that deliveries could only be made outside of playtimes or lunchtimes. The one school that had no agreement in place always had staff available to supervise him during the delivery.
The DBS responded stating that where an application for an enhanced check including a check of the children’s barred list is requested, the work must fall under ‘regulated activity with children’. A role can only be classed as regulated activity if it meets all of the following criteria:-
- It is carried out by the same person on more than three days in any period of 30 days
- It is carried out in an establishment which is exclusively or mainly for the provision of full-time education to children
- It should not be carried out on an occasional or temporary basis
- It is carried out for or in connection with the purposes of the establishment
- It gives a person the opportunity, in consequence of anything he is permitted or required to do in connection with the activity, to have contact with children.
From the information we provided to them, the DBS confirmed that part (e) of the criteria had not been met and therefore the enhanced check requested was ineligible.
The DBS stopped the check and contacted the employer to suggest that they apply for a basic criminal record check from Disclosure Scotland.
This case shows how organisations can try to carry out criminal record checks that they are not legally entitled to carry out under the Rehabilitation of Offenders Act 1974. This can sometimes be due to a lack of understanding of the criminal record disclosure system or a deliberate attempt to find out more about an individual than they are legally entitled to know.
- We have detailed guidance on types of criminal record checks.