Following an enquiry to our helpline, we became aware that a leading charity were requesting an enhanced DBS check for an office administrator’s role. From the information provided, we were of the opinion that the role would be covered by the Rehabilitation of Offenders Act and would only require a basic DBS check. Therefore, by requesting an enhanced check, the charity could potentially be carrying out an ineligible criminal record check.

We contacted the charity setting out the reasons why we believed the criminal record check requested was ineligible. We explained that enhanced DBS checks were usually reserved for those engaged in or looking to engage in regulated activity with vulnerable adults or children. We didn’t believe therefore that an office administrator role would meet this criteria.

We informed the charity that by conducting an ineligible check for the role they could be:

• Committing a criminal offence under the Police Act 1997 by knowingly submitting an ineligible check
• Breaching the first principle of the Data Protection Act 1998, both by obtaining information relating to ‘spent’ criminal convictions, and processing it unlawfully
• Breaching the third principle of the Data Protection Act 1998 because the processing of the check is likely to be ‘excessive’ if the position is not covered by the ROA Exceptions Order 1975

The charity were extremely receptive to our initial contact and we were able to engage with them further to provide information on the three levels of criminal record check and eligibility for each. After reviewing the information we provided, they recognised that the office administrator role had been incorrectly classified as requiring an enhanced DBS check and the charity confirmed that they would immediately amended the job description and application form to reflect that a basic DBS check would be requested.

Lessons

This case demonstrates the complexity around criminal record checks and how charities and employers can be confused as to the level of check that is required for a role they are recruiting for.

However, once aware that an ineligible criminal record check is being requested, some are happy to make the appropriate amendments to ensure they are fully compliant with the laws around criminal record checks.

Links

• We have guidance regarding understanding criminal record disclosure legislation

Notes about this case study

• This case study relates to the work we’re doing to support and challenge employers as part of our work on fair access to employment.
• Names and details have been changed to protect the identity of those involved.