About This Guidance
This guidance explains why a DBS can have value and how to best use them as part of a wider culture of safer recruitment. It also highlights their appropriate use and legal compliance. This guidance should be read alongside the Safer Recruitment Policy and Recruitment of Candidates with a Criminal Record Guidance.
Value of a DBS check
The Disclosure and Barring Services (DBS) process and issue DBS checks as part of a safer recruitment process. They share varying levels of someone’s criminal record. A DBS check serves to:
- Protect vulnerable groups. DBS Checks are designed to prevent unsuitable candidates from working with vulnerable people. If you have employees who will be working in regulated activity with children or , it is against the law to employ someone who is barred from working with these groups. DBS Checks are a vital part of the safeguarding process.
- Legally compliant. It’s illegal to employ someone to work in regulated activity with children or if they’ve been barred from doing so. Avoid risk to both your organisation and the vulnerable groups it works with, by carrying out relevant DBS Checks when required.
- Part of building confidence. DBS checks are a step towards ensuring you are hiring the right people for the position. They will only be relevant from the moment it’s completed and will only support identifying criminal records of those that the law are aware of.
A DBS check must be used in conjunction with an effective Safer Recruitment process, and employment of good management, training, monitoring and supervision processes. When used together these measures offer a more holistic approach to safeguarding.
Types of Checks
3.1 Levels of check
There are four different levels of check:
- Basic Check – applied for by an individual
- Standard Check – can only be applied for by the organisation
- Enhanced Check – can only be applied for by the organisation
- Enhanced with barred list check – can only be applied for by the organisation
They return different levels of information such as spent or unspent offences. See Appendix A – Summary of DBS check eligibility for more detail.
3.2 Eligibility
Paid or unpaid workers can be eligible for a DBS check and the minimum age at which someone can be asked to apply for a criminal record check is 16 years old.
Anyone is eligible for a basic check. However, the law defines who, or the role, that is eligible for a standard or enhanced check. You must be entitled by law to ask about someone’s full criminal history, otherwise known as an exempted question. An exempted question applies when the individual will be working in specific occupations, for certain licences and specified positions. These are covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
Unlawful DBS checks can be investigated by DBS under their Ineligible Applications Process. There is no definitive list of roles for relevant checks, but it’s related to the type of work and the place of work being undertaken.
3.3 Filtering
As of May 2013, standard or enhanced DBS certificates have some records filtered, or ‘protected’. This means offences may not be disclosed even on standard or enhanced DBS checks. It is not a legal requirement for any potential candidate to disclose a record that would be filtered from this check and you cannot ask.
A list, published by the Disclosure and Barring Service and the Home Office, outlining all offences that cannot be filtered from an standard or enhanced DBS check can be found on the Government website. These crimes pertain to over 80 pieces of legislation, including the Children Act 1989, Sexual Offences Act 2003, Mental Health Act 1974 and the Misuse of Drugs Act 1971.
More information about filtering and the way that filtering happens can be found on the Government website. In addition, a comprehensive DBS Filtering Guidance for employers about the disclosure of criminal records on DBS checks has been published by the Disclosure and Barring Service and Ministry of Justice.
Regulated activity and the barred list
You are only eligible to request a barred list check if the role will be engaging in regulated activity. As of May 2021, around 80,000 people are on the barred lists.
The definition of regulated activity varies depending on whether you’re working with children or adults at risk. Generally regulated activity refers to activities with these vulnerable groups where you would hold a relationship of trust or dependency. However, it also takes into consideration the frequency of interaction with this group.
As an organisation running activities defined as regulated activity you are defined as a regulated activity provider (RAP) which brings obligations under the Safeguarding Vulnerable Groups Act 2006.
Understanding a DBS check
The only time you are unable to employ someone with a criminal record when working with children or adults at risk, is if they are on the relevant barred list. Otherwise it is down to their suitability for the role.
Safe recruitment and criminal record assessments require careful management so as not to discriminate or treat people less favourably or lose the benefit of employing workers with lived experience. You should consult with the relevant HR and Safeguarding leads before committing to offering a role, especially if recruiting a person with a criminal record. See Recruitment of Candidates with a Criminal Record Guidance for more detailed information.
DBS checks and volunteers
Volunteers are as equally eligible for checks as employees. A volunteer is defined as: “a person who is engaged in any activity which involves spending time, unpaid, doing something which aims to benefit some third party other than, or in addition to, a close relative.”
A basic check for a volunteer would need to be paid for as it is not a legal requirement. However, an organisation completing a standard or enhanced DBS check would be free of charge. However, you may need to pay an administration fee if you are processing the check through an umbrella body, which can often be the case for smaller organisation not defined as a “responsible organisaiton” or a “registered body”.
In order to apply for a Volunteer DBS check, a person must not:
- receive any payment (with the exception of travel and approved out-of-pocket expenses)
- be on a placement
- be on a course that requires them to do this role
- be in a trainee position that will lead to a full-time role or qualification.
Ongoing Checks
In conjunction with the organisations Recruitment and Retention Policies, a DBS check must be completed and renewed every 3 years, or if a safeguarding concern has been raised.
For standard and enhanced checkers, ideally workers would be registered on the Update Service, which is an online subscription that allows applicants to keep their DBS certificates up to date and allows employers to view an applicant’s certificate at any time.
Legislation, Bills and Support
7.1 Support
If unsure, seek advice from the Safeguarding Lead within your Organisation. In addition you can access government DBS checks guidance for employers for more information.
7.2 Recent Changes
The law was updated in July 2020 to ensure even fairer opportunities for those with a criminal record. The following changes came into effect on 28th November 2020:
- Reprimands, final warnings and youth cautions are no longer disclosed. Regardless of the offence, reprimands, final warnings and youth cautions are no longer disclosed on any DBS check.
- Multiple convictions can be filtered. Provided the offence is eligible and didn’t lead to a suspended or actual prison sentence, convictions can now be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record.
7.3 Relevant Legislation and Bills
The Rehabilitation of Offenders Act (ROA) 1974 sets out in legislation rehabilitation periods, and that individuals do not have to disclose spent convictions unless they are covered in the Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975.
The Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975 sets out the exceptions for when an individual can be asked about spent convictions – known as asking ‘an exempted question’.
The Safeguarding Vulnerable Groups Act 2006 sets out the scope of regulated activity and operation of the barring element of DBS, which was previously undertaken by the Independent Safeguarding Authority (ISA).
The Criminal Records Bureau, which is now part of the DBS, was established under Part V of the Police Act 1997. This was updated as a result of Part 5 of the Protection of Freedoms Act 2012.
Part 5 of the Protection of Freedoms Act 2012 covers the reduction in scope of the definition of regulated activity, new services provided by the DBS, and disregarding convictions and cautions for consensual gay sex.