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Tag: 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


  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
  4. Download the report here: Checked out?
  5. The report has been published as part of Unlock’s fair access to employment project.


  • 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’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 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 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.

Bad policies and practices by employers

As part of our fair access to employment project, we work with employers to develop fair policies and practices and highlight good practice. We know that employers don’t always follow their own policy, and that sometimes decision making is subjective. We’re gathering evidence of bad practice and challenge this where we can – and we need your help to do this.

We want to hear your experiences of bad practice. In some cases, we will challenge employers directly. In other situations, we press for action to be taken by others including the DBS or the ICO. Where we’ve been successful in achieving changes in practice, we write the example up anonymously and post it on our website for employers to help employers learn where others have gone wrong. Ultimately, we want to see all employers operate fair and inclusive practices towards people with a criminal record.

Bad practice could include:

  • Asking about spent convictions for a job that is covered by the ROA.
  • Blanket policies of not recruiting people with unspent convictions
  • A ban the box employer asking questions on application
  • Carrying out DBS checks for roles not eligible for them
  • Requesting applicants provide a copy of their ‘police record’ (also known as ‘enforced subject access’)
  • Failing to give applicants an opportunity to explain their criminal record
  • Sharing information about criminal records without your consent (for example in references)

Take a look at some of the examples we’ve posted on our website for employers.

What we need from you

If you have experience of bad practice by employers, contact us at using the subject header ‘Call for evidence: bad practice’. Please include:

  • Your name
  • Contact details (email and telephone) and how you’d like us to contact you
  • Details of your experience (please include the name of the employer and of any staff you spoke to, include emails/screenshots etc if possible)
  • What you think should change.
  •  Whether you’d be willing to take part in media coverage on this issue in future (this is for our reference only, we won’t share your details with others)

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.

Find out more about how we handle your data.

Find out more about our work with employers.

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 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.

Do you need help challenging an ineligible DBS check?

Despite the Rehabilitation of Offenders Act, some employers try to seek a higher level of criminal record check than they’re entitled to. Sadly, the Disclosure and Barring Service (DBS) don’t have any process in place to flag up potentially ineligible checks; they assume that any application submitted is eligible for the level of check applied for.

If you believe that an employer is trying to carry out an ineligible check then the onus is on you to challenge this; either directly with your employer or through the DBS.

We’ve updated our challenging an ineligible check page to provide templates which you can use to challenge an ineligible check through the DBS. These can be used as a guide to help you write your own email.

As part of our fair access to employment project, we’re working to reduce the number of unlawful checks being carried out by the DBS. We’re keen to hear from anyone who believes that an employer has carried out a standard or enhanced check for a role that wasn’t eligible for that level of check and an employer has subsequently taken into account spent convictions or other information from the police that they were not entitled to see.

More information

Has an employer wrongly checked your official criminal record? – Get in touch

As part of our Fair Access to Employment project we’re looking for examples of employers who have carried out inappropriate levels of criminal record checks. We’re gathering this information to feed into our legal strategy which aims to put an end to unlawful criminal record checks.

We’re especially keen to hear from anyone who believes that an employer has carried out a standard or enhanced criminal record check for a role that wasn’t eligible for that level of check and that employer has subsequently taken into account spent convictions or other information from the police that they were not entitled to see (so called “soft intelligence” or “local police information”).

The types of information we’re looking for

We’re interested to hear examples where:

  1. Employers have carried out a standard or enhanced criminal record check which revealed spent convictions or “soft intelligence” or both, AND
  2. The role in question was not eligible for that level of check (i.e. a standard check was carried out when the role was only eligible for a basic check, or an enhanced check was carried out when the role was only eligible for a standard or basic check).

We will review all of the evidence and advise you about your options, including potentially participating in legal action against the employer or umbrella body for submitting an ineligible check or against the DBS for processing an ineligible check.

For more information see our website

Are you a delivery driver? Has your employer asked you to do an enhanced DBS check?

Over the past couple of weeks, we’ve had several enquiries from delivery drivers who’ve been asked by their employers to agree to an enhanced DBS check because they will be delivering to schools/care homes. The reasons often given by the employer for these types of check is that drivers will be delivering on a regular basis to these establishments and may have the opportunity to have unsupervised contact with a child or vulnerable adult. We’ve looked into this issue and sought further guidance from the Disclosure and Barring Service.

The criteria for an enhanced DBS check with a barring list check would be for those roles which involve regulated activity, for example healthcare professionals, social workers, teachers etc.

With regard to regulated activity and driving, the DBS state that the following roles would be considered to be regulated activity and would require an enhanced DBS check with barring:

Roles relating to adults

  • Any driver or any assistant who transports an adult (including any carer) because of their age, illness or disability to or from places where they have received, or will be receiving, healthcare, relevant personal care or relevant social work for the purpose of enabling the adult to receive that healthcare, personal care of social work.
  • Patient Transport Service drivers or assistants; Ambulance Technicians or Emergency Care Assistants.

Roles relating to children

  • Driving a vehicle being used for conveying children and their carers or supervisors under a contract or similar arrangement when carried out by the same person frequently.

As can be seen from the above, a delivery driver does not fall under regulated activity. The majority of schools maintain appropriate safeguards by asking that deliveries avoid playtime and lunch periods when children might be generally unsupervised around the school grounds. Most schools would ensure that they provide someone appropriate to supervise a driver as he carries out his delivery duties.

The frequency of visits applies only to ‘teaching, training, caring or supervising’ children and are not duties that would be undertaken by a delivery driver. The driver’s role is to deliver goods not take responsibility for children in the school.

We’ve set out below a snapshot of the advice we received from the DBS.

Snapshot of DBS advice

Therefore we would suggest that if your employer asks you to have an enhanced DBS with barring check, you should challenge this through the DBS.

For more information

  1. For practical self-help information – More information is available on our criminal record checks for employment section
  2. Questions – If you have any questions about this, you can contact theHelpline
  3. Policy – Read about the policy work we’re doing on this issue – Stopping unlawful/ineligible DBS checks

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

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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