What are DBS checks?
In December 2012 the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) merged to form the Disclosure and Barring Service (DBS).
The DBS carries out criminal records checks and supplies disclosures of information about convictions and, where necessary, other relevant information on an individual.
There are several different types of DBS checks that an employer can undertake on their employees, and the type of check depends on the role offered and the sector the employer operates in.
Employers should note the minimum age at which someone can be asked to apply for a criminal record check is 16 years old.
Types of DBS checks and who can apply for them
There a number of levels of checks that can be undertaken, the list below provides a summary:
Basic DBS check – this provides details of convictions and conditional cautions considered to be ‘unspent’ under the terms of the Rehabilitation of Offenders Act 1974.
This level of check is open to anyone and can be used for any purpose.
Standard DBS check –this provides information about convictions, cautions, reprimands and warnings held on the Police National Computer (PNC), regardless or not of whether they are spent under the Rehabilitation of Offenders Act 1974. The law allows for certain old and minor matters to be filtered out.
This level of check is of often required for positions in law, finance (e.g. accountancy and banking) and some administrative roles. An individual cannot apply for this level of check themselves, it must be done by the employing organisation.
Enhanced DBS check – this provides the same information about convictions, cautions, reprimands and warnings held on the Police National Computer (PNC) as a Standard DBS check, plus additional information held by police such as interviews and allegations. Additional information will only be disclosed where a chief police officer reasonably believes it to be relevant and considers that it ought to be disclosed.
The position being applied for/or activities being undertaken must be covered by an exempted question in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and by provisions in the Police Act 1997 (Criminal Records) Regulations 2002.
This level of check would be for roles in schools, hospitals, healthcare and those working with children and vulnerable adults. This would include volunteers. It can only be applied for by the organisation who is hiring the individual, not the individual themselves.
Enhanced DBS check with barred list information – this is check provides the same information as an Enhanced DBS check plus information on whether the applicant is on the list of people barred from doing the role for which the check is for.
When can I ask an employee to have a DBS check?
Basic DBS checks can be requested by an individual.
However, when asking applicants, or employees for a DBS check an employer must be clear on the reasons for asking for that check.
It is illegal to ask an employee for a DBS check, unless it is actually necessary. Under the Rehabilitation of Offenders Act 1974, a person with a criminal record is not required to disclose any spent convictions unless the position they are applying for, or are currently undertaking, is listed as an exception under the Act.
Access to the DBS checking service is only available to registered employers who are entitled by law to ask an individual to reveal their full criminal history (other than protected cautions and convictions), including spent criminal convictions. This process is also known as ‘asking the exempted question’. An exempted question applies when the individual will be working in specific occupations, for certain licenses and specified positions. These are covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
Work involving activity with children or vulnerable adults is specifically regulated in law, and employers have legal obligations under the relevant vetting and barring schemes to carry out checks on those engaged in such activities. This is known as ‘regulated activity’. See below.
Employers should be aware that if they require an individual to undergo a DBS check they are aware of, and follow, the DBS code of practice. The code of practice states that information on a DBS certificate should only be used in the context of a policy on the recruitment of ex-offenders. This is designed to protect applicants from unfair discrimination, based on non-relevant past convictions. The DBS have published a sample on the recruitment of ex-offenders policy to help guide organisations.
What is regulated activity?
There are two areas of regulated activity:
Regulated activity relating to children – this includes providing personal care, education, health care, or other frequent unsupervised supervision of children. There are many roles within education, healthcare, children’s services and organisations who support children that are considered to be in regulated activity. Bear in mind that, unless the organisation is a childcare or education provider, that regulated activity would mean that the postholder has ‘frequent’ contact with children.
Regulated activity relating to adults – this would include; provision of health care, personal care, social work and assisting a vulnerable adult in household or financial matters. It would also include transporting a vulnerable adult to or from a place where they receive relevant personal or social care organisation (this excludes taxi drivers or family and friends). An adult would be considered vulnerable because of his or her age, illness or disability.
Please note, that these are very brief descriptions for the purposes of this resource.
To ensure you undertake the right check, use the DBS’ eligibility tool: https://www.gov.uk/find-out-dbs-check
How do a process a DBS check?
As above, a DBS check can only be processed by registered employers. This can be direct, if the employer is registered with the DBS. An employer who has infrequent need for checks can use an ‘umbrella body’. These are companies who will process the check on their behalf.
There are costs involved to process a DBS check for employees, although checks for volunteers are charged at a lower rate.
Employers should also be aware that the DBS certificate remains the property of the individual. Under GDPR the employer should not keep a copy of the certificate for longer than is absolutely necessary. Usually this would only be for a short period to confirm pre-employment checks or record the DBS information on the Single Central Record, if applicable.
How long is a DBS check valid for?
A DBS check has no ‘time limit’. The check is accurate as at the date it was issued by the DBS. Organisations need to review their own internal procedures as to how, or if, DBS checks are renewed after a period of time.
There are different approaches to this:
Some organisations review all staff on a three or five yearly basis;
Some organisations use a ‘self-declaration’ method and ask staff to confirm that there have been no changes to their criminal history since the DBS was originally issued. This is done annually or every two years.
Some organisations ask staff to re-apply for a check if they move roles internally.
Whichever approach you use it’s important you evaluate the cost of re-applying for DBS checks, the sector you operate in, any requirements from funders, any changes in legalisation and the resource involved in administering your procedures, against the safeguarding risks for your organisation.
Remember each time you apply you will need to ensure the individual is clear why you are accessing their personal data.
What is the DBS update service?
Once a DBS check has been processed an individual is able to apply to the DBS update service. This allows them to keep their certificate up to date and enables them to give permission for potential employers to view their up-to-date DBS check.
The cost is currently £13 per year, and this is particularly useful for freelance workers (such as sports coaches, therapists, counsellors etc) who work, or volunteer, for a number of organisations. This enables the individual to show the requesting organisation their DBS status without having multiple applications made. More information is here: https://www.gov.uk/dbs-update-service.
What do I need to do now?
If you have positions that require a criminal record check you should ensure:
There is a lawful reason for undertaking a check;
Your recruitment materials (e.g. application form, adverts etc) clearly state that a DBS check will be required. You should be clear on the level of check and the reason why you require a check;
Your recruitment of ex-offenders policy should be available on request. Ideally this would be available on your website, or within the job pack.
Your contract of employment reflects that a satisfactory DBS check is a requirement for an individual's employment, and should the employee fail to share information regarding a change in their status, this could be a disciplinary matter (up to and including gross misconduct).
Where do I find out more information?
The DBS service has information on their pages on the Gov.uk website: https://www.gov.uk/government/organisations/disclosure-and-barring-service.
I’m also happy to assist with any questions you may have. If you would like further information, or would like to discuss a post that you think may need a criminal records check, please get in touch.
(Note: The information in this article relates to the DBS service in England and Wales. Disclosure Scotland is a separate body, with similar functions in Scotland).