The recent headlines concerning Uber have brought the subject matter of criminal record checks in to the spotlight for many organisations.
As is well documented, TFL (Transport for London) has revoked Uber’s licence to operate in London. It is reported that TFL’s decision was in part due to concerns relating to Uber’s approach to carrying out background checks on drivers and reporting serious crime offences.
This has become a timely reminder for employers to ensure that they are compliant and understand the broader legal position, the validity of criminal record checks for a given role, and industry specific obligations around criminal record checking.
The Disclosure and Barring Service (DBS) and criminal record checks
The Disclosure and Barring Service (DBS) replaces the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA). The Government’s website information pages (GOV.UK) advise that the criminal checking service helps employers to make safer recruitment decisions and to prevent unsuitable people from working with vulnerable groups, including children.
- The Standard check is available for duties, positions and licences included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Orders 1975. A standard level of certificate contains details of all spent and unspent convictions, cautions, reprimands and final warnings from the Police National Computer (PNC)
- The Enhanced check is available for specific duties, positions and licences included in both the ROA and the Police Act 1997 (Criminal Records) regulations. An enhanced level certificate contains the same PNC information as the standard level certificate but also includes a check of information held by police forces
- The Enhanced Disclosures with a barred list check is available only for those individuals who are carrying out regulated activity and a small number of positions listed in Police Act 1997 (Criminal Records) regulaions
The Rehabilitation of Offenders Act 1974 (ROA) allows cautions, convictions, reprimands and final warnings in respect of a certain offence to be considered spent after the rehabilitation period.
The Police National Computer (PNC) refers to the police database, which holds criminal record information.
These checks can be administered directly by the employer, but more often than not, companies utilise the services of an umbrella body. The umbrella body is a registered body that gives other non-registered organisations access to DBS checks. The external company providing umbrella body services will countersign applications making a declaration that the position is eligible for the DBS checks requested. Although the umbrella body will usually act as a counter signatory to confirm the validity of a DBS check for a given role (in accordance with the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Orders 1975 and the Police Act 1997 (Criminal Records) regulations), employers still have a legal responsibility to be compliant with the current DBS regulations.
The standard or enhanced certificates issued by the DBS are used to list job applicants’ previous convictions. However, the government amended the scheme in 2013 following a Court of Appeal ruling to introduce a filtering process. The revised system applies to single convictions for non-violent and non-sexual offences that did not lead to a suspended or custodial sentence. These offences are not disclosed after 11 years or five and a half years if the person was under 18 at the time of the offence.
There has been further criticism of the application of the filtering process by the High Court in relation to the one conviction only rule, regardless of the minor nature of the offence or the person’s circumstances at that particular time. Lord Justice McCombe concluded that there should be a mechanism ‘…for testing proportionality for interference if the scheme is to be in accordance with the law.’
At this point, the government’s regulated process remains unchanged since the amendments in 2013.
Duty of employers
There are other prescriptive aspects to the legislative framework in place. It is an offence for an employer to knowingly allow a barred person to engage in regulated activity with the group with which they are barred from working, such as children or vulnerable groups. Employers have a legal duty to refer to the DBS any person who has been removed by the employer, or would have been removed had the person not left the workplace, from engaging in regulated activity.
Likewise, it is unlawful to carry out standard or enhanced DBS check for a role which not exempt from the ROA and therefore not eligible for a DBS check. Employers should only carry out DBS checks for specific positions, professions, employment, offices, works and licences included in the ROA Exceptions Order.
The landscape for employers
There are certainly procedural complexities for employers to decipher. However, in light of the changes, the CIPD (Chartered Institute of Personnel and Development), in conjunction with Nacro (crime reduction charity) publication entitled ‘Recruiting Safely and Fairly’ (May 2015), aims to provide legal clarity around criminal record checking practices. This legal information resource is endorsed by the DBS.
Employers are advised to balance industry and/or sector specific regulations along with a common-sense approach to risk factors and the relevance of minor offences (in some cases major offences) and convictions when considering the suitability of an individual to undertake a given job. The reintegration of ex-offenders into the workplace is an important element and is in harmony with the legal principles and practice recommendations set out for DBS checks.
This is radically redefining the position for ex-offenders during recruitment processes and conditional offer periods – a champion for progressive reform, albeit in a legally compliant framework.
CBW’s HR consultants can take away some of the burden with tailored criminal records checking administration services. For further information, please get in touch with the author on the details below.