Practical guidance – Carrying out criminal record checks

Aim of this guidance

This guidance is designed to help you determine whether you need to carry out a criminal record check – also known as a DBS check. It explains the different levels of check and provides a step-by-step guide to working out eligibility.

Levels of check

Criminal record checks should only be carried out when necessary. Deciding whether a check is necessary or not will probably require input from the line manager as well as HR. Necessity will be determined by the duties and responsibilities of the role. The duties and responsibilities will help determine what level of check is necessary.

  1. Basic
  2. Standard
  3. Enhanced
  4. Enhanced with barred list
The level of check you do will depend on the role you are recruiting for. Most jobs in England & Wales are covered by the Rehabilitation of Offenders Act 1974. For these jobs, employers can only request a basic check. Jobs that are exempt from the Rehabilitation of Offenders Act may be eligible for a standard, or enhanced check or enhanced with barring list check.

Basic check

Employers can apply for a basic disclosure as for any role. England & Wales, they can be carried out on roles covered by the Rehabilitation of Offenders Act 1974

Key facts about basic checks:

Unlike standard and enhanced checks, there is no legal obligation to carry out a basic check. Recruiters can request a basic check for any role, provided they comply with GDPR requirements and identify the purpose, lawful basis and condition for processing the data.

Basic checks are commonly requested by

  • the airline industry
  • courier companies
  • telecommunications
  • non-regulated financial service positions
A basic check should only be carried out once the applicant has accepted a conditional offer of employment.
A basic check discloses unspent convictions only.
For jobs in England and Wales, basic checks should be requested through the DBS.

 

Standard check

If you are recruiting for a specified role that is exempt from the Rehabilitation of Offenders Act 1974, you should carry out a standard check. For these roles, a standard check is a legal or regulatory obligation.

Key facts about standard checks:

Roles eligible for standard checks are listed in the Rehabilitation of Offenders Act (Exceptions) Order 1975. They include:

  • Security industry licence (on application for a licence to the Security Industry Authority)
  • Solicitors and Barristers (on entry to profession)
  • Chartered/certified accountant (on entry to profession)
  • Veterinary surgeon (on entry to the profession)
  • Financial Conduct Authority ‘approved person’ roles
A standard check should only be carried out once the applicant has accepted a conditional offer of employment.
A standard check discloses unspent and spent convictions, and cautions. It won’t disclose anything that is now ‘protected’.
A standard check is requested from the DBS 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 should 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. Roles that can involve enhanced checks include:

  • Driving instructor
  • Librarian (if expected to be involved in supervised teaching, training or instruction of children)
  • Lifeguard
An enhanced check should be carried out once the applicant has accepted a conditional offer of employment.
An enhanced check discloses unspent and spent convictions, and cautions. It won’t reveal anything that is now ‘protected’. An enhanced check may disclose other information, such as allegations and arrests, if the police consider it relevant to the position.
An enhanced check is requested from the DBS 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. For these roles, this level of check is a legal requirement.

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
An enhanced with barred list check should be carried out once the applicant has accepted a conditional offer of employment.
An enhanced plus barred list check discloses unspent and spent convictions, and cautions. It won’t reveal anything that is now ‘protected’. An enhanced with barred list check may disclose other information, such as allegations and arrests, if the police consider it relevant to the position. Depending on whether you request a check against the children’s or adults’ barred list (or both), it will provide details about whether the applicant is on those.
An enhanced plus barred list check is requested from the DBS via a registered body.

What level of check is necessary?

The lists below are intended to provide a general guide to the types of roles that are eligible for different levels of check. The lists are not exhaustive and do not constitute legal advice. Employers are responsible for ensuring that their data collection – including criminal records data –  complies with relevant laws.

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.

For an A-Z of job roles and their eligibility for different levels of check, see 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.

In the meantime, there are some useful links below:

Jobs where eligibility is uncertain

Standard and enhanced checks should only be requested for roles that are exempt from the Rehabilitation of Offenders Act 1974. Employers sometimes misinterpret eligibility and request a higher level of check than what they’re legally allowed to do.

Examples of roles that are not generally eligible for higher level checks include:

    • 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’.
    • Entering homes – 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
    • Financial roles – 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) – see this example
    • HGV drivers – see this example

There may be circumstances where roles with similar titles are eligible, but  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.

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 practice:

“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 using a registered body 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.

Step-by-step guide to working out eligibility

The level of check that you can carry out will vary depending on the particular role. You should be make clear what type of check you are entitled to request before you advertise the position (see our checklist for vacancies). Ideally, recruitment and line managers should be included in determining eligibility.

The duties and responsibilities of each role will determine what level of check – if any – is necessary. The following tips and tools will help you make decisions that are legally compliant and fair to applicants.

  1. Step 1 – Assume the ROA applies
  2. Step 2 – Consult the DBS guidance
  3. Step 3 – Use the DBS tool
  4. Step 4 – Take advice from a registered body
  5. Step 5 – Take 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.

Step 2 – Consult the DBS guidance

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

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

Step 3 – Use the DBS tool

The DBS have designed a tool – ‘Find out if you can check someone’s criminal record‘ – to help you you work out what level of criminal record check you can request.

  1. It only covers roles in England & Wales
  2. It was made available in August 2016 and is still subject to feedback
  3. It doesn’t cover every role. Contact the 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 4 – Take advice from a registered body

If your organisation is a registered body, you should have skills and expertise within your organisation to advise on the relevant level of check for a particular role.

If you’re not a registered body, you’ll need to use a registered or ‘umbrella’ body to carry out standard or enhanced DBS checks. ‘Umbrella’ bodies means they conduct checks on behalf of smaller employers. In this situation, the employer is 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. They have to make a legal declaration when submitting the application to the DBS, so they need to be sure the role is eligible.

Step 5 – Take advice from the DBS

You can contact DBS customer services for further information or if you’re not sure about what level of check you can carry out.

 

Still not clear?

If you’re still not clear, you can 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 provide advice and guidance.

Email the following 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%).

Read our report Checked out: ineligible checks and what should be done about them

Don’t just do the right check – explain it 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

 

 

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
  3. Our report on ineligible checks and why they matter – Checked out

 

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

Print Friendly, PDF & Email