Carrying out criminal records checks
This article seeks to address the following questions that we are often asked by clients:
- Can/should employers be carrying out criminal records checks for all/any of their current and prospective employees?
- If an employee refuses to provide this information or the results of those checks give the employer cause for concern, what are they able to do?
Firstly, when considering this topic, it is important to understand the difference between spent and unspent convictions.
Subject to some 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 is considered to be rehabilitated and their conviction becomes “spent”.
The Rehabilitation of Offenders Act 1974 (Exceptions Order) 1975 (“the Exceptions Order”) sets out the circumstances in which a conviction will not be treated as spent and must therefore be disclosed. These are where an individual is working in an excepted occupation, office or profession of which at least 70 are identified. They include professions such as lawyers, medics, police officers, those who work in financial services or those who work with children or provide care services to vulnerable adults.
The simplest way for an employer to find out if a prospective employee has a criminal record is to ask them. This approach clearly has limitations because:
- If the vacancy is not covered by the Exceptions Order, the applicant is entitled not to disclose spent convictions and, if the applicant inadvertently discloses the existence of spent convictions, the employer is not entitled to act on this information
- There is no guarantee that the individual will respond honestly
- If the vacancy is covered by the Exceptions Order, the employer may ask the individual to disclose any spent convictions but will need to explain why they are entitled to do so. In addition the employer will be entitled to ask for a standard or enhanced DBS check on the individual (see below).
Undertaking DBS Checks
The Disclosure and Barring Service (DBS) provides employers with information to assist them in assessing the suitability of an individual for work.
There are three levels of disclosure provided by the DBS; basic, standard or enhanced.
A basic DBS certificate can be applied for by an individual and contains details of unspent convictions or a statement that the individual has no such convictions.
Standard and enhanced DBS certificates can only be applied for in respect of excepted posts covered in the Exceptions Order. An individual or a registered body can apply for them but the application must be countersigned by a registered person confirming their entitlement to apply for the certificate. These certificates will cover convictions both spent and unspent.
What can an employer do with the information obtained?
In some sectors, having a criminal record will preclude that person from being appointed to the role in question.
If there is no industry guidance but the position nevertheless falls under the Exceptions Order then an employer will have to use its own judgment when deciding what weight to place on an individual’s criminal record history.
If the role does not fall within the Exceptions Order, the employer should not take spent convictions into account (i.e. they should not refuse somebody employment on this basis) but may take unspent convictions into account.
When deciding whether or not to make a job offer conditional upon a satisfactory basic DBS check, employers should have regard to whether it is reasonable and proportionate and, to this end, should bear in mind the following guidance from the Information Commissioner:
- Information on convictions should only be sought if it is relevant to the job being filled
- The same questions should not necessarily be asked of all applicants –i.e. a DBS check may be required for staff who are required to work at various off site locations, but might not be considered necessary for office based staff.
If employers consider it is necessary and proportionate to require satisfactory DBS checks, then it would be sensible to document its reasoning i.e. in the offer letter or the staff handbook.
If an offer of employment is conditional on receipt of a satisfactory basic DBS check (and spent convictions inadvertently disclosed by an individual are not considered), employers will be able to refuse employment to any applicants whose checks are considered unsatisfactory or those applicants who refuse to obtain the check.
If, having recruited for a position, an employer considers that the nature of the job is such that it would want to know on an on-going basis if the employee committed an offence, the employer should include a continuing disclosure obligation in the employee’s contract. The existence of such a clause will not mean that a subsequent dismissal is necessarily fair, but it may assist the employer in showing that it acted reasonably.