Criminal Checks and the Recruitment Process

There is no express prohibition on an employer asking a job applicant, an employee, worker, or a volunteer about their criminal records. The Disclosure and Barring Service (DBS) replaces the Criminal Records Bureau and enables individual and businesses that operate in certain sectors, the ability to obtain accurate information about criminal records of job applicants. There are different levels of DBS checks which are appropriate for different roles. Depending on the severity of the conviction, convictions can become spent (i.e. out of date) and thus do not appear on standards checks. Certain roles and industries (such as those involving contact with children or vulnerable adults) require more detailed checks which still record spent convictions.

Pre-Employment
An employer should make it clear early on in the recruitment process whether criminal records checks will take place and when and how these will be conducted. Questions about criminal records should be asked once the successful applicant has been chosen and the employer has offered employment. Vetting all short-listed candidates in respect of criminal records should be avoided. Any offer of employment should be clearly made subject to receipt of satisfactory background checks.

Rehabilitation of Offenders: Spent and Unspent Convictions
The legal position on the treatment of individuals with criminal records is set out in the Rehabilitation of Offenders Act 1974. Subject to certain exceptions, a person who has been convicted of a criminal offence but who does not re-offend during a specified period from the date of conviction (“the rehabilitation period”) is considered to be rehabilitated and their conviction becomes "spent".

Once the conviction is spent, these individuals will be entitled to hold themselves out as having a clean record unless an exception applies. During the rehabilitation period, the conviction is "unspent" and should be disclosed in response to a request for details of the individual's criminal record.

Criminal Record Checks
An employer can seek information about employees and job applicants by asking to voluntarily disclose information about criminal records. This is fraught with the risk of dishonesty. An individual can seek to obtain certification free of charge.

In certain roles such as those involving children and vulnerable adults the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 applies and employers may be required or permitted to access official records of an individual's criminal convictions. This is done through the Disclosure and Barring Service (DBS). A fee is payable on request.

The DBS
The DBS provides employers and those organisations engaging employees and volunteers in England and Wales with information to assist them in assessing the suitability of an individual for work which in certain positions of trust, including work with children and vulnerable adults. The service is also available to other professional, licensing and regulatory bodies whose volunteers, employees and licensees are not necessarily in direct contact with the vulnerable, but who still need to uphold the highest standards of professional performance.

There is provision for three levels of disclosure to be provided by certificate:

Basic disclosure
The basic DBS certificate contains details of unspent criminal convictions, conditional and unconditional cautions, or a statement that the individual has no such convictions or cautions.

Standard disclosure
A standard DBS certificate will contain details of the individual's:

• Convictions, both spent and unspent.
• Cautions, both spent and unspent.
• Police reprimands and warnings.

Enhanced disclosure
This can be obtained in the form of either an ordinary Enhanced disclosure or an Enhanced with List Checks disclosure. Organisations can only apply for this for applicants who are on the Exempt list and who will work with children or vulnerable adults.

An enhanced DBS certificate will contain details of the individual's:

• Convictions, both spent and unspent.
• Cautions, both spent and unspent.
• Police reprimands and warnings.
• Relevant police information.
• Where appropriate to the post being applied for, any information stored about the person on statutory lists (containing details of people who are considered unsuitable to work with children or vulnerable adults).

In addition, since 17 June 2013, the DBS has operated an online Update Service. For the first time, individuals can now apply to have their criminal record check kept up to date and employers can go online to confirm that the information is current and valid.

Who Can Apply?
Only registered bodies or umbrella bodies can apply for standard or enhanced disclosures. Basic disclosures are only available to individuals.

Data Protection
Information about criminal records is considered sensitive personal data and thus should be stored accordingly.

Disclaimer: This article does not contain a full statement of the law and it does not constitute legal advice. Please contact the Employment Law Team on 020 3743 0600 if you have any questions about the information set out above.