Challenging ineligible standard and enhanced checks

We continue to receive many enquiries from clients being asked to do standard or enhanced Disclosure and Barring Service (DBS) checks for jobs which they don’t think are eligible for one.

We are often asked for a ‘list of job titles’ which are eligible – no such list exists. What makes a role eligible depends not only on the work that you will be doing but, the place you are working (i.e. a hospital).  In essence therefore, this can be quite a grey area.

Added to this, when recruiting, employers don’t always state very clearly whether they intend to carry out a criminal record check or what level will be applied for.  Employer’s often don’t make this clear because they assume that it doesn’t concern the majority of their applicants.  However, if you have a criminal record, it can be the most important part of the recruitment process.

Why is this important?

The level of check an employer can carry out is extremely important, particularly if you have spent convictions – these wouldn’t be disclosed on a basic check.  Likewise, if the police hold information about you locally, this wouldn’t be revealed on a basic or standard disclosure but might be disclosed on an enhanced disclosure. Details of what can be found on different levels of criminal records check can be found here.

Remember, once a criminal record check is carried out and an employer has the information, then it is difficult to stop them applying the information they’ve received to any recruitment decision that they’re making.

The application for a DBS check for an ineligible position is unlawful under the terms of the Police Act 1997.  If an individual knowingly  applies for a DBS check for a post which is not included in the Exceptions Order 1975 then they would be committing an offence by knowingly making a false statement for the purpose of obtaining or enabling another person to obtain a certificate.

How do I know if the role is eligible?

As we’ve already mentioned, there isn’t a definitive list. The types of positions which may be eligible for standard or enhanced checks are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These can be divided into five broad categories: –

1. Professions
2. Law & Order
3. Certain Regulated Occupations
4. Health and Social Care
5. National Security

But not every job is eligible. We’ve heard from clients working in clerical roles in offices to mechanics in garages who have all been asked to do enhanced checks.  A particular favourite was a guy who, as part of his role, checked whether customer toilets met the company cleaning standards – another enhanced check requested!!

How do I raise concerns about an ineligible check without alerting my employers to the fact that something is likely to be disclosed on a DBS check?

We would always encourage anybody who believes that a check is ineligible to raise their concerns with the organisation if they feel able to. You will need to be careful not to raise suspicions that you have a criminal record and who you need to speak to will vary.  It will normally be somebody with recruitment or personnel responsibilities. We have an establishing eligibility section on the Hub that might help.

If the organisation insists on carrying out the check, you are not legally obliged to give your consent. However, if you refuse an employer will normally reject a job application. You may need to consider agreeing to the check, then raising a formal eligibility query with the DBS.

Challenging a potentially ineligible check

The time to use the DBS Eligibility Query process is when:

1. you have spent convictions, and
2. you’re applying for a job that says they will do a standard or enhanced check, and
3. you’ve been offered the position, and
4. you’ve been asked to consent to a DBS check

Once an application for a standard or enhanced check has been submitted to the DBS, you can use the Eligibility Query process to stop the check whilst the DBS investigate whether the check is lawful.  Details of the process can be found in the ineligible checks section of the Hub.

In a case where we helped an individual go through the eligibility process, they found the process relatively easy. The DBS requested additional information from both sides (applicant and organisation) but at all times managed to protect the identity of the applicant.  The DBS found in the applicants favour that an enhanced check was ineligible.

The results so far

As the case above shows, the Eligibility Query process is working. It’s fair to say that there are still problems with the overall system – for start, it shouldn’t be left to individuals to have to query individual applications.

However, in a recent Freedom of Information request, we asked the DBS how many times the DBS has written to employers under their Ineligible Applications Process. Between March 2012 and February 2013, they’d written to 3,311. Of those, the results were that 1,385 applications were not completed, which works out at 42% of the ones that the DBS looked into.

So the message we want to give is, if you think a job is carrying out an ineligible check, then challenge it.

As always, we’re keen to hear of examples where you’ve challenged an employer, either formally or informally. Send your examples to policy@unlock.org.uk.