Criminal records
Whilst clients and employers might wish to know whether a candidate looking for work has a criminal record, the right to request to see such information is subject to strict controls. This section will explain how to check a person’s criminal record, what are “spent” or “unspent” convictions and the circumstances in which convictions can or should be disclosed.
- REC corporate members can access a model form for requesting information about criminal convictions.
- REC's revised guidance on statutory disqualification for schools
- An online DBS eligibility tool which provides assistance in determining whether a criminal records check is needed for particular roles/assessments.
Can I ask candidates for details of criminal convictions?
It is common for potential employers and employment businesses to ask candidates to give details of any previous convictions. The Rehabilitation of Offenders Act 1974 (the Act) allows an individual who has been convicted of certain offences to treat the conviction as though it had never happened.These are known as 'spent' convictions.
With the exception of certain roles and types of work, it is not permissible to ask a candidate about spent convictions.
Further it is unlawful for an employer/prospective employer not to offer employment/to terminate employment on the basis that it is discovered that the individual has a spent conviction.
In general a conviction cannot be spent if it incurred:
- a sentence of more than four years;
- preventative detention, or its equivalent for young offenders.
What are the exceptions – when is it possible to ask about spent convictions?
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists certain positions, professions and offices to which the Rehabilitation of Offenders Act 1974 does not apply.
Where this exception applies, a prospective employer/employment business is entitled to ask a candidate about both spent and unspent convictions and the candidate is required to provide the information. These are referred to as ‘exempted questions.’
A list of these exceptions is set out in guidance provided by the Disclosure & Barring Service.
Employment businesses, which supply temporary workers to a client, are deemed to be employers and permitted by the DBS to apply for Disclosures. By contrast, Employment Agencies, which introduce candidates for employment with the client direct are only permitted to obtain a Disclosure if the employer who will be employing the candidate is permitted to do so and only then once the offer of employment has been made.
A prospective employer may not ask an applicant or candidate to declare any spent criminal convictions in relation to employment other than the excepted classes of employment and excepted professions listed. The following is an example of the way in which such a request for information should be phrased:
“Do you have any unspent criminal convictions? If yes, please provide the offence dates, dates of conviction/caution, offence types and sentences below. The information you give will be treated in confidence and only taken into account where, in the reasonable opinion of [insert name of employment business], the offence is relevant to the post for which you are applying. Failure to declare a conviction may require us to exclude you from our register or terminate an assignment if the offence is not declared but later comes to light.”
In what circumstances is a person required to disclose ‘spent’ convictions?
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 provides a list of occupations and professions in relation to which individuals are required to declare spent convictions.
For further information see the DBS check: eligible positions guidance.
How do I check a candidate's criminal record?
England and Wales
Employers and employment businesses can arrange for candidates to apply for a criminal records certificate processed via the Disclosure and Barring Service (DBS).
In order to access DBS disclosures you must either:
Register your business/organisation with the DBS as a Registered Body (this is only possible if more than 100 checks will be carried out per year); or
Use an ‘umbrella organisation’ i.e. a Registered Body which is registered with DBS to provide disclosure access to non-registered organisations.
These are the basic steps for a DBS check:
- Get the application form from DBS or your umbrella body.
- Ask the candidate to fill in the application form.
- Send the application form to your umbrella body or DBS. If your organisation is registered with DBS the countersignatory has to sign the form.
- DBS will send you a certificate.
Registered organisations must also follow the DBS code of practice.
Organisations that carry out more than 1500 checks per year can use the DBS e-Bulk service, which can help reduce costs and waiting times for DBS checks.
What are the different levels of disclosure?
In England and Wales, there are four levels of disclosure: basic check, standard check, enhanced check and enhanced with a barred list check. The level of the check will generally be determined by the duties of the job or the position that is to be taken up. Individuals who will be carrying out regulated activity will be eligible for an enhanced DBS check with a check against the adult barred list and or children scarred list as applicable.
Basic Disclosure:
This will reveal information about unspent convictions or conditional cautions held on police central records.
Standard disclosure:
This will reveal spent and unspent convictions, cautions reprimands and final warnings held on police central records.
Enhanced disclosure:
The Enhanced Disclosure will reveal all of the information contained in the Standard disclosure. In addition it will also include a check of additional information held locally by police forces which will be included only where it is reasonably considered relevant to the post applied for.
Enhanced check with children and/or adult barred lists check:
This will encompass all of the information included in the Enhanced disclosure and also a check or checks of the children or adult barred list or both, as applicable. Only individuals who will be carrying out regulated activity will be eligible for this level check.
DBS Adult first check:
DBS provide an additional service for the healthcare sector where there is an urgent need to check the suitability of an individual to carry out regulated activity in relation to adults.
The service can be used when there is a need to provide staff to prevent staffing levels from falling below statutory minimum requirements in relation to work:
- In a care home;
- For a domiciliary care agency; or
- As an adult placement worker.
An individual will be checked against the adults barred list and if there is no match he or she will be entitled to commence work in a supervised capacity while awaiting the full DBS disclosure results.
How does the filtering process work?
For context, the term "filtering" means the process of identifying and removing convictions that are deemed to be 'protected' so that they will no longer appear/be disclosed on a DBS certificate.
On 28 November 2020 the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) was amended. These changes now mean that:
- warnings, reprimands and youth cautions will no longer be automatically disclosed on a DBS certificate
- the multiple conviction rule has been removed, meaning that if an individual has more than one conviction, regardless of offence type or time passed, each conviction will be considered against the remaining rules individually, rather than all being automatically disclosed
The new filtering rules however only apply to DBS certificates issued on or after 28 November 2020 and the changes are as follows:
For adults, convictions will only be removed if:
- the offence is not a listed offence, i.e. is a non-specified offence
- It did not result in a custodial sentence
- 11 years have elapsed since the date of the conviction for the non-specified offence.
A caution will be removed after 6 years from the date of the caution if it is a non-specified offence.
Note that convictions and cautions that relate to certain offences under the Safeguarding of Vulnerable Groups Act 2006 and certain other offences will never be removed from a person’s criminal records certificate.
For anyone under the age of 18 the timescale for convictions if it is a non-specified offence is reduced to 5 and a half years for a conviction. Periods for cautions is no longer included under the new filtering rules.
Under the new filtering rules, all convictions, cautions for specified offences, as well as convictions wich led to a custodial sentence must always be included on Standard and Enhanced DBS certificates.
The previous filtering rules can be found on the government website.
How does disclosure fit within our current recruitment process?
Stage 1: the post
- Evaluate need for Disclosure
- If needed, what level? Basic, Standard or Enhanced.
Stage 2: recruitment
Advertising - Any description of a post that requires a Disclosure should state:
- That the successful candidate will be asked to apply for a Disclosure.
- The level of Disclosure required for the successful candidate.
- That further information about the Disclosure scheme can be found on the DBS website.
Application forms to recruit for Disclosure positions - All application forms should state the level of Disclosure required from a successful applicant.
Stage 3: selection
- Confirm candidate’s identity and evaluate qualifications, skills and experience.
- Make final selection of candidate subject to references.
Stage 4: disclosure application
- Offer applicant the post, subject to the receipt of satisfactory references.
- Obtain Disclosure to confirm suitability.
Who can be a registered body?
Organisations that are likely to ask exempted questions under the Rehabilitation of Offenders Act 1974 or will act on behalf of groups or individuals asking exempted questions may apply to be registered with the Service. Therefore members involved in the supply of workers such as social workers, teachers, doctors, nurses and carers may apply to be a registered body.
Any organisation wishing to apply to become a registered body will be asked to complete a registration questionnaire, which will enable the DBS to assess its suitability. The organisation will then be required to complete and submit a Registration Application form together with the appropriate fee, to the DBS. The DBS will then carry out a number of checks on the organisation and the person registering it to make sure that they do not have an unsuitable background. The registration process can take 8 weeks.
To register, an organisation must consider whether it is:
- entitled to ask exempted questions under the Rehabilitation of Offenders Act (ROA) 1974 Exceptions Order 1975;
- able to comply with the DBS’s Code of Practice; and
- able to meet the threshold requirements and submit a minimum of 100 applications per year.
Families employing/ engaging nannies/au pairs, domiciliary care workers cannot become a Registered Body or gain access to the Disclosure service.
Some registered bodies may consider applying to become umbrella organisations. This enables the organisation to countersign applications on behalf of others. Hence an organisation with a Head Office could potentially register on behalf of all its branches. Alternatively an agency can ask an unconnected registered Umbrella Body to carry out a Disclosure on its behalf. A list of such Umbrella Bodies who would be willing to carry out DBS checks in England and Wales, for a fee, is available on the DBS website.
What is the cost?
Please see Fees for DBS Checks on the GOV Website.
Who will the disclosure be sent to and what will it contain?
The applicant is sent the original of the Disclosure and a copy of the Standard or Enhanced Disclosures is sent to the Registered Body which counter-signed the application. Therefore, the Registered Body will usually have the same information as is on the applicant’s copy. Where the Police supply additional information, this can be supplied in one of two ways; either, on the Disclosure itself, in which case it will be on both the applicant’s and the Registered Body’s copy, or by way of a separate side letter.
Where police information is supplied in a separate letter it cannot be disclosed to the applicant. It is the decision of the Police whether to supply the additional information on the Disclosure or by a separate letter. The reason why the information cannot be disclosed should be self-explanatory and, for example, may indicate that the applicant is under Police surveillance. It is recommended that the agency simply states to the applicant that the result of all the checks carried out was not satisfactory. The agency should not state that the decision was based solely on the information contained within the Disclosure.
How frequently must I obtain a disclosure for a worker?
Normally, it is entirely under your discretion as to how often you choose to obtain a Disclosure of an individual; however the Protection of Children Act requires a fresh check to be made each time a person takes on a new job that involves working with children in child care organisations. This requirement is removed if the person is employed by an employment agency. The Protection of Children Act makes provision for annual checks to be made in these circumstances. In other cases the REC suggests that a check every 3 years is appropriate.
The Guidance for Teaching Agencies and Businesses issued by the DFE suggests agencies should obtain a fresh Disclosure every 3 years or earlier if the teacher has a break in service of 3 months or more, or there are grounds for concern about the person’s suitability to work with children. Teachers who are on the books of more than one agency at the same time need not be asked to obtain a separate Disclosure by each agency. In those circumstances the second or subsequent agency should require the teacher to produce his or her copy of the Disclosure obtained by the first agency, and should verify the validity of the document by checking with the agency. The REC’s Childcare division has adopted a similar policy for nannies and au pairs.
It is important to remember that the Disclosure is only valid from the date it is produced.
What happens to people who have worked overseas or who come from overseas?
The Disclosure will be of limited value in respect of an individual with substantial gaps in their UK residence or of individuals with little or no previous residence in the UK. However, in some circumstances a Disclosure is still required before the worker can start work. The DBS will offer guidance to employers about the availability of criminal record checks in other countries. Some positions require checks of the lists.
The Safeguarding Children and Safer Recruitment in Education statutory guidance provides further guidance on carrying such checks.
Schools and FE Colleges must satisfy themselves that supply staff have undergone the necessary checks.
Further checks should be made including obtaining a certificate of good conduct, enquiries should be made to the embassy or High Commission of the relevant country.
Can I accept the criminal record check shown to me by the applicant as sufficient or do I have to insist on a separate check?
The Disclosure is only valid from the date that it is produced. But can be accepted subject to the rules governing portability.
Can the individual pay for the check or is this breaching the Employment Agencies Act?
The cost of the Disclosure can be borne by the individual and will not be a breach of the Employment Agencies Act. However, it will be open for recruitment consultancies or employers to reimburse the cost to the applicant if they so wish.
How long do I keep the disclosure?
Disclosure information must be kept confidential and not disclosed to anyone (in line with the Data Protection Act 2018). There is no time limit for the retention of DBS certificates, however, where there is a legal requirement to keep the Disclosure for a set period, this should be complied with.
For example in the nursing and domiciliary care sectors the agency is required to keep the Disclosure until they have been inspected by the CQC. Only establishments regulated by CQC are entitled to keep Disclosures until the first visit has taken place, usually within 12 months.
In addition the Conduct of Employment Agencies and Employment Businesses Regulations 2003 require that records are kept for 12 months and these override the provisions of the Code.
Also the Safeguarding Children and Safer Recruitment in Education statutory guidance provides that where a worker remains with an agency for more than 12 months a Disclosure can be kept for up to 3 years to facilitate portability arrangements. This is not inconsistent with the DBS Code of practice as the Code specifically states that the period of 6 months may be exceeded in very exceptional circumstances, which justify retention for longer. The DBS has agreed that supply agencies may retain Disclosures for up to 3 years in these circumstances and that this is not inconsistent with the Code's provisions.
Before a Disclosure is destroyed records need to be kept detailing the date it was obtained, who obtained it i.e. the name of the agency, the level of the Disclosure and its unique identity number.
Is there a code of practice?
Registered bodies and all those in receipt of Disclosure information will need to sign up to the Codes of Practice. The DBS has its own codes of practice. Click here to see the DBS Code of Practice. In summary the obligations of these codes are in relation to the handling of the disclosed information. The Code of Practice is designed to ensure that all the information provided about prospective candidates is handled confidentially, sensitively and fairly by all organisations. Organisations using the Disclosure service must also comply with the DBS Code of Practice regarding the recruitment of ex-offenders and ensure that all applicants are treated fairly.
The Disclosure service will check that registered bodies are complying with the Code of Practice and will take steps to rectify any cases of non-compliance.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.