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.
Employers who knowingly submit ineligible checks are committing a criminal offence under the Police Act 1997 – yet there has never been a legal challenge. It is difficult for an applicant to challenge an ineligible check and no penalty for using spent convictions in this way. Consequently, there are no repercussions to undertaking ineligible/unlawful checks.
What we think needs to change
We want to see the responsibility for ineligible checks shared between employers and the DBS. We’re also calling for legal protection for spent convictions to deter employers from collecting and using this information.
We believe that employers should have fair and inclusive policies and procedures that support the recruitment of people with convictions.
What we're doing
As part of our fair access to employment project, we are working to reduce the number of unlawful checks being carried out by the DBS.
Although our casework has achieved success for individuals, a legal challenge would have a significant impact. We will:
- Work with the DBS to push for, and monitor delivery of, a comprehensive review of their process for identifying ineligible checks.
- Depending on the outcome of the review, a potential legal challenge against the DBS for continuing to facilitate ineligible checks.
- Continue to advocate individuals affected by ineligible checks
- Seek a legal challenge against an employer, to demonstrate the risks of processing ineligible checks
Have you come across an unlawful check?
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 email@example.com 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.
Latest updates on this issue
- New report highlights potentially hundreds of unlawful criminal record checks by employers each year
- Bad policies and practices by employers
- Has an employer wrongly carried out a standard or enhanced DBS check?
- Launch of #FairChecks – A fresh start for the criminal records system
- Blog – The answer to Oxfam’s safeguarding problems is not enhanced DBS checks