Establishing what level of check an employer can carry out

Aim of this page

What level of check an employer can carry out is important, particularly if you have spent convictions, as they wouldn’t be disclosed on a basic check.

We have general guidance on the types of jobs that are often eligible for certain types of checks. This page is designed to help you establish what level of check an employer would legally be eligible to carry out. It forms part of our section on criminal record checks for employment.

Why is this important?

We know that on occasions, employers will request DBS checks for roles that only require a basic check. Having an understanding of what level of check a job is eligible for can ensure that an employer is not able to find out more about you than legally they are allowed to know.

If you feel sure that an employer is trying to do an ineligible check, this should give you more confidence in challenging the check with the employer or the Disclosure and Barring Service.

The DBS eligibility tool

The DBS recently launched an eligibility tool which may help you to establish which roles or activities could be eligible for a standard or enhanced DBS check. The eligibility tool is still relatively new and doesn’t cover every role. However, it is being continually tested and improved.

Our ‘Establishing eligibility’ process

We have developed this process (EEP) to help you establish what type of check a particular position is eligible for.

Using the EEP

The EEP is a single flow chart.  Some sections have more detailed guidance and these are clearly labelled, e.g. ‘See Note 1’.  To find out more about these steps, go to the relevant sections below.

The EEP is designed to be used before an application is made for a criminal record check when you’ve been told that a certain type of check will be carried out and you are unsure about whether it is eligible

Further down this page, reference will be made to the ‘Establishing Eligibility’ form

Note 1 – Ask the organisation

Check their paperwork

Most organisations provide details if they require a check for a specific position. Look for any mention of criminal record checks in the job description, role specification and any other information they have provided.

Check their website

Look for the organisation’s employment policies. The DBS Code of Practice requires organisations who use the DBS service to include a policy on the recruitment of people with convictions. Look to see if they have a policy on which roles require a check.

Check the DBS application form

If the organisation has already given you a DBS application form to complete, look at question X-61 (position applied for) – see image above. This is normally completed by the Registered Body (RB) after you have completed the form. If it has already been completed, make sure it matches the specific job that you have applied for.

It is important to check this because the DBS do not ordinarily query eligibility based on the answer to this question unless it has been brought to their attention.

Remember that a position which may not seem eligible (e.g. “administrator”) may be eligible due to other circumstances. The RB should give as much detail as possible (e.g. “school administrator”).

Contact the organisation

Asking the organisation directly can be the quickest way to find out which type of check will be required (if any). However, if you don’t do this anonymously, you may raise suspicion that you have a criminal record.

Next steps

• If you believe the organisation is right: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job.
• If you are not sure whether they are right or wrong: Go to Note 2 (below)
• If you believe the organisation is only entitled to a lower check: Go to Note 2 (below)

If you believe the organisation is actually entitled to a higher check: Proceed with your application. Whilst you may be able to refuse, you may want to disclose now if you want to avoid an issue at a later stage.

Note 2 – Gather more information

Some job titles are often assumed to make the role eligible for a specific level of check. For example, a “Teacher” might be assumed to be eligible for an enhanced check. However, a teacher in a University (such as a Lecturer) would normally only be eligible for a basic check.

Equally, some job titles are assumed to make the role ineligible for a specific level of check. For example, an “Office Assistant” might be assumed to be ineligible for an enhanced check but might be eligible for one if working in a school or care home.

To understand what level of check the position is eligible for, you need to find out as much information about the role as possible. The Establishing Eligibility Form provides a set of standard questions for which you should try to get answers.

Alternatively, you could use the DBS eligibility tool checker which will take you through a series of questions to estabish eligibility.

Next steps

• Go to Note 3

Note 3 – Decide for yourself

The answers to the questions in Establishing Eligibility Form or the DBS eligibility tool checker should give you the information you need to establish eligibility or take the matter further if necessary.

Next steps

• If you believe the organisation is right: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job
• If you think that the organisation is wrong: Go to Note 4.

Note 4 – Challenge the organisation/registered body

The organisation may be a registered body itself or may have made the application via an umbrella body. In either case, you should raise your concerns with the organisation first. When you contact them, you will need to be careful not to raise suspicions that you have a criminal record.

You may want to initially speak with the organisation. However, if they insist that the position is eligible you should raise your concerns in writing and ask for a written response. This is so you have evidence which you may need to use later on. Remember to be aware that you may be identified if you share your personal information.

You should detail the reasons why you feel that the position is not eligible for the type of check being requested. Some things you might want to consider are: –

• The organisation may already be aware of your concerns from your earlier questions
• Ask them to reconsider undertaking a check
• State what level of check you think the position is eligible for and offer to apply for it
• Ask for a response in writing including reasons why they made the decision that they have.

If the organisation is not a registered body, you need to repeat the above with the umbrella body that they are using. They are the ones who are legally responsible for making the declaration about the eligibility of the check on the DBS application form.

Bear in mind that the umbrella body may not be fully aware of the details of the role. They will only know what the employer has told them. However, if you raise a query with them, they should be able to look into it and get back to you.

Next steps

• If they agree and decide to undertake a different level of check:  Give your consent. If you disagree with the new level of check being proposed, repeat Note 4.
• If they disagree: Go to Note 5.

Note 5 – Seek advice

Seek general advice from the DBS

If after all of the above steps a check is still being required for a position you don’t think is eligible, you should seek some advice about what to do next. When seeking advice, try to provide as much information as possible, including a completed ‘Establishing Eligibility’ form or a print out from the DBS eligibility tool checker.

However, you should also ask yourself whether, if successful, you would be in a better position. For example, if your convictions are unspent, even if you managed to show that the organisation isn’t entitled to an enhanced check, they’d still be entitled to a basic, which would show your unspent convictions.

You can contact the DBS by emailing customerservices@dbs.gsi.gov.uk or telephoning them on 03000 200 190.

Seek general advice from the Ministry of Justice

The Ministry of Justice (MoJ) has policy responsibility for the Rehabilitation of Offenders Act 1974 and Exceptions Order 1975. You can seek advice from the MoJ on the eligibility of a position. They have an online form you can use to contact them.

The MoJ may have to share your personal information with the Home Office (which is responsible for the Police Act regulations which govern enhanced checks) and other Government officials. If you do not wish this to happen, make this clear when you send your query. It may be possible for them to remove your personal information but they may be limited in how they can help. The MoJ will respond in writing, either by post or by email. A reply should be provided within 20 working days. It will state that the position is either (a) eligible, (b) not eligible or (c) may be eligible for the type of check that is being requested. In all cases they will provide reasons why. The MoJ is only able to give a general indication, based on the information you provide. Please note that this is not legal advice

The MoJ is unable to impose sanctions on an organisation as there is no offence committed in the initial asking of the questions. However, if the MoJ’s view is that the position may not be eligible, you can then present this information to the organisation.

Seek general advice from others

You may want to seek advice from organisations such as the DBS, Unlock etc.

Next steps

• If it is not eligible: Send any evidence to the organisation and ask them to reconsider.
• If the employer agrees: Give your consent. If you disagree with the new level of check being proposed, repeat Note 2.
• If the employer disagrees: Go to Ineligible checks section.
• If it is eligible: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job. If you decide to give your consent.
• If it may be eligible: Either return to Note 2 (to clarify the role further before challenging the organisation and seeking official clarification again) or go to: Ineligible checks.

Discuss this with others

Read and share your experiences on our online forum.

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

• Disclosure and Barring Service – Government body responsible for producing standard and enhanced criminal record checks
• Disclosure Scotland – Government body responsible for providing basic criminal record checks in England, Wales and Scotland
• Ministry of Justice – Government body working to provide a more effective and transparent criminal justice system and are responsible for the Rehabilitation of Offenders Act

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