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For people with criminal records
For people with criminal records

Category: Stop ineligible checks

New report highlights potentially hundreds of unlawful criminal record checks by employers each year

Unlock, a national advocacy charity for people with criminal records, has today published Checked out?, a report on so-called ‘ineligible’ criminal record checks, submitted by employers and processed by the Disclosure and Barring Service (DBS).

The Rehabilitation of Offenders Act 1974 allows some criminal records to become spent after a crime-free period. This means they are no longer disclosable – for example to employers – enabling people to move on and positively and contribute to society. For jobs working with children and vulnerable adults, spent criminal records must still be disclosed.

In 2019/20, the DBS carried out more than 4 million checks at the higher levels of enhanced or standard. Unlike basic checks, these disclose cautions and spent convictions and are legally permitted only for specified jobs and professions such as teaching, social work, accountancy or law. Carrying out a check at a higher level than permitted can be a criminal offence and a breach of data protection laws – exposing employers to financial and reputational risk. It unnecessarily prevents people with spent criminal records from gaining employment.

Despite the introduction of basic checks in 2018, Unlock’s helpline has seen a 25% increase in calls about ineligible checks. The report highlights the significant impact ineligible checks have on the lives of law-abiding people with criminal records – it estimates that over 2,000 people a year have to deal with the consequences of a caution or conviction unlawfully disclosed to an employer.

Responsibility for ensuring eligibility rests with the employer and the DBS trusts employers to request the right checks. The law is complicated, employers are rarely trained, and many show a blatant disregard for selecting the appropriate level of check. There is almost no chance of accountability and law-abiding people with criminal records are needlessly kept out of the workplace.

The report makes recommendations for government, the DBS and employers to prevent ineligible checks. These include amendments to the Police Act so employers and the DBS share liability for ineligible checks, legal protection for spent convictions and an urgent review of DBS processes for preventing ineligible checks.

Commenting on the report, Rachel Tynan, Unlock’s policy and practice lead and co-author of the report, said:

“Law abiding people with criminal records are struggling to find work as some employers are breaking the law to find out whether potential employees have ever broken the law. Ineligible checks are usually only carried out after offer, meaning the candidate has been chosen as the best person for the job, only to be rejected for an old or minor criminal record they are entitled to withhold.

“That’s bad news for them, their families and the economy – it’s got to change. This report sets out a number of recommendations to government, the DBS and employers that would turn the tide, prevent ineligible checks and improve compliance.”

For more information about the report, please contact Rachel Tynan. Email rachel.tynan@unlock.org.uk.

Notes

  1. Unlock is an independent national advocacy charity for people who are facing obstacles, stigma and discrimination because of their criminal record
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s main website is unlock.devchd.com.
  4. Download the report here: Checked out?
  5. The report has been published as part of Unlock’s fair access to employment project.

Background

  • In 2019/20, the DBS carried out 5.9 million criminal record checks – 3.86 million enhanced and 326,000 standard checks, along with more than 1.7 million basic checks. Basic checks are available to any employer (provided they set out their lawful basis for checking). Standard and enhanced checks are only available for professions or roles exempt from the Rehabilitation of Offenders Act 1974.
  • A basic criminal record check reveals convictions and cautions that are unspent under the Rehabilitation of Offenders Act 1974. A conviction or caution is unspent for a period of time, determined by the sentence. Once a conviction or caution is spent, it no longer appears on a basic check. However, higher levels of checks (standard and enhanced checks) continue to disclose spent convictions and spent cautions. Only when a conviction or caution meets an additional set of strict technical rules can a conviction or caution be removed from a higher level of check, in line with the ‘filtering rules’.
  • The term ‘ineligible check’ refers to checks carried out at a higher level than permitted in law. This could mean an enhanced check where only standard is permitted, but the more common problem is requesting a standard or enhanced check where only a basic is permitted.

Case studies

Darren

Darren’s minor convictions were from 30 years ago and long spent but, as there was more than one conviction, they were not eligible to be removed (or ‘filtered’) from his enhanced check. He contacted us for advice when a job offer from his local council was withdrawn following what he believed to be an ineligible enhanced DBS check.

During our correspondence with the council it became clear that there was a misunderstanding of the type of work that would be eligible for an enhanced check. They said:

“Although the DBS is saying we only need a basic check, there may be opportunities that the team may have contact with children or vulnerable adults in their work and the fact that the majority of the team currently have enhanced DBS checks, then it may be a good idea to stay at this level. For example, a car parking officer may have to approach a car where a young child has been left alone”.

We went back to the council to confirm that approaching a car which has young children in wouldn’t make this type of role eligible for an enhanced check and explained the purpose of these checks. The council reviewed the role and agreed that a basic check was more appropriate but by the time the review was complete, Darren had taken another job.

Darren said: “Had the correct level of check been done in the first place, I would have been able to start the job. It took so long for them to acknowledge their mistake and I couldn’t keep waiting without a job. It’s disappointing that a big organisation like the council didn’t understand what type of checks they could do.”

Dennis

Dennis was a driver for an out of hours doctor’s service, driving doctors to appointments and waiting whilst they attended to a patient. Rarely, he chaperoned whilst the doctor carried out a procedure on the patient – this had only happened twice in the previous year.

After several months in the job, the employer decided to carry out an enhanced DBS check for his job. Dennis did not believe the job was eligible but felt he had no choice but to agree. Before the check was submitted, Dennis disclosed details of his criminal record and was suspended by his employer.

On reading the job description, we agreed that his job would not appear be eligible for an enhanced DBS check. To be eligible, he would need to be performing chaperone duties once a week or more, or at least four days in a 30 day period. In any event, Dennis was always accompanied by a medical professional who had been DBS checked and had overall responsibility for the patient. We provided Dennis with information and advice on challenging the check and offered to speak with his employer.

The employer carried out an investigation into Dennis’s concerns and confirmed that the job was not eligible for an enhanced check and they would update their policy to reflect this.

Dennis said: “I knew the job didn’t require an enhanced check and I’m pleased that [his employer] recognised that. I wanted to share my story so other people might feel they can challenge bad practice at work too.”

Danny

Danny contacted us for advice when his employer, a company selling disability aids, requested an enhanced DBS check for his role as a driver/technician, stating that he would be required to instruct and train ‘vulnerable’ adults in the use of the equipment he was delivering. Danny hadn’t received training in using equipment and, in the few weeks he had been working there, had only delivered pillows, walking sticks and wheelchairs. He felt the job would probably only require a basic DBS check and wanted to know how he could challenge the company. He had a spent conviction which he had not disclosed when applying for the job, as he was led to believe that it was a delivery driver job which would not be eligible for an enhanced check.

Danny had no choice but to agree to the enhanced check and then raise it with the DBS. He told them other drivers doing the same job were also undergoing enhanced checks. The DBS confirmed that they had put his application on hold whilst they investigated the eligibility of the check but could not do the same for the other drivers.

The DBS told Danny that his employer had given his job title as an Outreach Support Worker. This did not match his job description, qualifications or experience. He was told that the DBS did not question job titles with requesters and, on the job description provided, the role was eligible for an enhanced check. Danny decided that the only option open to him would be to arrange to speak to his employer about his conviction – who immediately terminated his contract.

Danny said: “I wouldn’t have applied for a job as a support worker – I’ve got no experience or interest in that type of work. As far as I was concerned, it was a driving job, dropping things off at the front door. None of the other drivers trained anyone either.”

The DBS would not investigate why Danny’s employers provided a different job description to the one being performed. Had they investigated the other drivers’ roles and found all of them raising the same objections, they might have reached a different decision.

Has an employer wrongly carried out a standard or enhanced DBS check?

As part of our fair access to employment project we’re gathering information on employers who have carried out standard or enhanced checks where only a basic is legally permitted.

For some jobs, employers are allowed to consider cautions and spent convictions (unless they have been filtered). Employers recruiting for these jobs are legally permitted to carry out a higher level DBS check – a standard or enhanced check. Both checks disclose cautions, spent and unspent convictions and enhanced checks may also include additional “soft intelligence” held in police records. It is a criminal offence for an employer to knowingly request a check at a higher level than the law permits.

Find out more about eligibility here.

What we need from you

Has an employer has carried out a standard or enhanced criminal record check for a role that wasn’t eligible?

Have they taken into account spent convictions or other information that they were not entitled to see (so called “soft intelligence” or “local police information”?

If so, please contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ineligible DBS check’. Please include:

  • The name of the employer (or umbrella body if relevant) that did the check
  • The job title of the role you applied for, and a description of the responsibilities
  • A copy of the job advert (if available)
  • The full details of your criminal record
  • Details of any correspondence with the employer about the check – for example, did they tell you it was necessary for the role you were applying for and, if so, did they say anything else about why?
  • Details of what happened when the disclosure certificate was given to the employer
  • Whether you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent. To help us provide you with the best advice, we may discuss your case, anonymously, with legal practitioners.

Find out more about how we handle your data.

Find out more about what we do with your experiences and evidence.

New briefing published – “Criminal record checks: is the volume of disclosures proportionate?”

Three-quarters of a million criminal records that are more than a decade old are being revealed to employers on DBS checks each year. That’s one of the findings of a new briefing published by the Centre for Criminal and Justice Studies (CCJS).

The research, which we have supported, was featured in The Observer on Sunday 26th November. The article looked at the need to reform the disclosure rules that are unnecessarily holding people with convictions back, and featured a quote from Unlock’s co-director, Christopher Stacey.

Over four million roles every year involve an enhanced DBS check, and although these were designed for jobs that involve close contact with children and vulnerable groups, it’s gone way beyond that now. Unlock regularly gets contacted by people who have been asked to do an enhanced check to be a delivery driver or a receptionist.

This can affect somebody who stole two chocolate bars when they were 14 and they’re now in their 50s. Having to relive one of the worst moments in their lives by explaining it to a stranger puts a lot of people off applying and unnecessarily anchors people to their past. The routine rejection by employers locks people out of the labour market and has a considerable financial cost to society through out-of-work benefits.

Unlock has called for reforms to the DBS filtering process, as well as the introduction of a criminal records tribunal, so individuals could apply not to have their criminal records disclosed in particular circumstances.

 

More information

  1. The briefing can be downloaded here.

Decade-old criminal record disclosures? The need for reform

With the disclosure of old and irrelevant criminal records in the spotlight, Christopher Stacey looks at how the system is unfairly holding people back

Over four million jobs every year involve employers requesting an enhanced criminal record from the Disclosure and Barring Service (DBS).

Although these were originally for roles that involve close contact with children and vulnerable groups, the types of positions that often involve them has now gone way beyond the core purpose. For example, Unlock is regularly contacted by people who have been told they need an enhanced check for a job, for example, as a delivery driver or a receptionist.

These checks alone would not be so much of an issue, if it were not for the fact that, given the current rules for disclosing old and minor criminal records, it means that around 250,000 people every year are affected by old and minor cautions and convictions being revealed on enhanced DBS checks.

Couple that with the known negative reactions (and often blanket policies) of employers towards applicants with a criminal record, it is unsurprising that they are the least likely ‘disadvantaged group’ to be employed.

Against unnecessary disclosure

We need to make sure that enhanced DBS checks do not unnecessarily disclose information that is old, minor or irrelevant to the job being sought. Up until now, there has been very little detail on what type of information gets disclosed on DBS checks, which is why the briefing published by the Centre for Crime and Justice Studies is so welcome.

The research shows that in 2015, over one million criminal records were disclosed on standard or enhanced checks. Yet nearly three-quarters of those criminal records (742,482) were more than ten years old.

We know that the length of time since their last offence is one of the most important factors in establishing the likelihood of someone committing an offence in the future, so why is it that these criminal records are being disclosed over a decade later?

The desperate need for reform

The crux of the issue are the current ‘filtering’ rules. Although these are complex, they essentially mean that if someone has a certain criminal record, it will be disclosed on an enhanced DBS for the rest of their life. This includes someone:

  1. With more than one conviction on their record, or
  2. has been cautioned or convicted for a certain type of offence (there are over 1,000 of these, including aggravated bodily harm and soliciting for the purposes of prostitution), or
  3. who has received any type of prison (or suspended prison) sentence.

This can affect somebody who stole two chocolate bars when they were 14 and who is now in their fifties. This puts a lot of people off applying and unnecessarily anchors people to their past. The routine rejection by employers locks people out of the labour market and has a considerable financial cost to society through out-of-work benefits.

At Unlock, we have argued that the filtering rules are in desperate need of reform. Earlier this year, Court of Appeal agreed, ruling that the current system is disproportionate and not in accordance with the law. The government is dragging its heels by appealing to the Supreme Court. It is clearly not listening to the compelling evidence that shows the significant and unnecessary barriers to rehabilitation that the current regime is creating.

Recent reports by David Lammy MP and the Justice Committee have also added weight to the need for changes.

It is common sense that certain offences need to be disclosed to employers. But we should not be unnecessarily blighting the lives of people who are trying to move on, by disclosing old, minor or irrelevant information that holds them back and stops them from reaching their potential.

A fairer and more flexible system would be one with expanded automatic filtering rules and a discretionary filtering process, with a review mechanism so that individual circumstances can be considered.

Alongside changes to the filtering rules, Unlock has long supported the introduction of a criminal records tribunal. This would allow enable individuals to apply for an end on the disclosure of their criminal record to employers on a relevant criminal record check.

There is evidence from overseas that this approach works. It would help to address the injustice that many people face as a result of what are currently arbitrary, fixed rules that take no account of the positive steps that people have taken since the actions that resulted in their receiving a criminal record.

 

Unlock in prison!

In February 2016, we were invited by Plias Resettlement to visit Wormwood Scrubs and Pentonville prisons to present workshops on criminal records and disclosure (they deliver the National Careers Service contract there). The aim was to look at the ongoing effects of a criminal record, how this can affect a person’s ability to reintegrate into society upon release from prison, and how to overcome these.

 

‘We recommend the workshops that Unlock deliver; they are informative, relevant and provide people with convictions with up to date and accurate information that enables them to move on with their lives.’  PLIAS Resettlement, 2016 

 

Plias gave us a fairly flexible brief in running a 2-hour workshop. This is where the idea behind our Top 10 things to know about a criminal record came from (which we developed at the same time). We wanted to keep things simple, but wanted to cover some of the key areas of life that people need to be aware of.

 

Wormwood Scrubs Workshop

Our 1st workshop at Wormwood Scrubs (photograph courtesy of PLIAS with permission from the prison)

 

The result was a new ‘Moving on with Conviction’ workshop. The idea being that we would highlight 10 key areas which we think, from experience of running our helpline, are important for anybody with a criminal record to know about, with plenty of opportunity for questions.

We had about 20 men come along to the classroom in the education department at Wormwood Scrubs. With a relatively small number of people, we were able to make the session very interactive with lots of questions and answers and many of the men shared their own personal experiences. Some comments after the event were:-

 

I think workshops like the one today should take place more often – enlightening

 

Very positive approach and really well presented

 

Full of confidence from the first one, we headed off to Pentonville a couple of days later. This one was quite different; it took place in the large prison chapel with around 70 men turning up. The size of the room and the number of people meant that the session had to be far more ‘controlled’ which made it difficult for too much interaction. Initially, this made it quite difficult to engage with the group.

We recognise how hard it is to take any positives out of being in prison and it’s easy to think that a criminal record will prevent you being able to move on successfully in the future. It was clear that many of the men in Pentonville felt this way.

Explaining to the group that there were may employers out there that were willing to give people a second chance and highlighting how 50% of Unlock’s staff and trustees had a criminal record seemed to endorse the positive message we were trying to put across.

From then on, the atmosphere in the room seemed to change, with the session becoming more upbeat. Comments from the men included:-

 

I understand a lot now about jobs and how to disclose

 

I felt the event was done very well under pressure

 

We are grateful to the support of Plias in covering our costs in preparing and delivering these sessions. We’ve come away with some ideas of how we might be able to do more of these in the future, as it’s clear to us that many people in prison are simply not made aware of things they need to be alert to in dealing with the impact of having a criminal record once they’re released.

 

Written by Debbie Sadler, Advice Manager

 

More information

You can find out more about our fair access to employment project here or get in touch with us.

Practical self-help information can be found on understanding your criminal record and disclosing to employers.

 

Finally, ‘enforced subject access’ becomes a criminal offence

From tomorrow, 10th March 2015, a practice known as ‘enforced subject access’ becomes a criminal offence, as section 56 of the Data Protection Act comes into force.

As we originally reported in an update to our Information Hub in June 2014, this is an important step in making sure that employers and organisations don’t take part in the unsavoury practice of requiring individuals to provide a copy of their police records through their rights of subject access.

 

 

Today, to help people understand what this means in practice, we’re:

  1. Publishing brief guidance for individuals on our self-help Information Hub
  2. Providing a news update for employers, as well as brief guidance for employers and organisations
  3. Highlighting the technical guidance that the Information Commissioners Office has published.

 

Christopher Stacey, Co-Director  of Unlock, said; “Subject access is an important right of individuals to be able to obtain copies of their own criminal record. However, ever since the Data Protection Act came into force, there has been clear evidence of unsavoury practices where employers and others have abused this right by requiring individuals to use this route as a way of checking an individuals’ criminal record, which is a clear abuse, and bypasses the official disclosure regimes which have safeguards built into them.”

“The criminal offence that comes into force will finally give the Information Commissioners Office the tools that they need to deal with the problem. We’ll be monitoring the practices of employers and organisations, and where appropriate, we’ll be challenging those organisations. We also look forward to working closely with the ICO, so that this type of practice can be stamped out. We’re encouraging anybody who knows of practices like this to get in touch with our helpline”.

 

Employers – New criminal offence; make sure you check your recruitment processes!

Tomorrow, the 10th March 2015, a new criminal offence of ‘enforced subject access’ comes into force, which employers and organisations need to be aware of.

This news has implications on the recruitment processes of employers and organisations. In particular, it has an impact on those that ask individuals to obtain a copy of their police record, for example as part of the recruitment process.

To help to understand the practical implications of this news, and what employers should do, we’ve produced a simple guidance leaflet which explains this in more detail.

We have also produced guidance for individuals with convictions. A link to this, and more background information, can be found in our main news piece.

If you have any questions about this as an employer, you can contact us for advice.

“Enforced subject access” will become a criminal offence on 10th March 2015

We’ve learnt from the Information Commissioners Office that section 56 of the Data Protection Act 1998 will be brought into force on the 10th March 2015.

This means that “enforced subject access” will finally become a criminal offence. As we explained back in June 2014 when this was first announced, this is an important development for people with convictions.

There is more information about this news on our self-help information site.

Employers’ access to ‘subject access’ records will become a criminal offence from December 2014

We’ve learnt today that the Ministry of Justice are planning to bring section 56 of the Data Protection Act (DPA) 1998 into force on the 1st December 2014.

There’s more information about this in an update on our Information Hub.

Kent and East Sussex council CRB checks ‘unjustified’

We’re featured in a BBC article that has investigated the use of CRB checks by local councils. Read the article here.

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