Unlock Category: 2. Disclosure and Barring Service
How employers should handle certificate information
This section will explain what employers should do when they receive information on a criminal record check.
Using disclosed information to make a recruitment decision
What is the DBS code of practice?
The DBS code of practice is published under Section 122 of the Police Act 1997. It aims to ensure that criminal record information is used fairly and applicants are protected from unfair discrimination due to non-relevant convictions. Anybody who receives standard or enhanced certificate information must abide by the code of practice, this includes Registered Bodies, Umbrella Bodies, recruiters and any others receiving the information.
What does the code of practice require of Registered Bodies?
The DBS code of practice requires that Registered Bodies must: –
Have a written policy on the secure handling of information which, in the case of Umbrella Bodies, should be made available to their clients. A sample policy produced by the DBS is available online
Store DBS certificate information securely
Retain DBS certificate information, its content or any representation of the same in any format for no longer than is necessary and for a maximum of six months following the recruitment decision unless a dispute is raised or, in exceptional circumstances, where DBS agreement is secured
Ensure that no reproductions of the DBS certificate or its content are made, including photocopies or scanned images, unless with the prior agreement of the DBS or as a result of a stipulated requirement relating to the e-channel service
Only share DBS certificate information with relevant persons in the course of their specific duties relevant to recruitment and vetting processes
Dispose of DBS certificate information in a secure manner
Ensure that they comply with DBS guidance on the portability of DBS certificates and their contents.
What does the code of practice require of others?
In making use of DBS checks, any organisation subject to the code of practice must: –
Ensure that all applicants for relevant positions or employment are notified in advance of the requirement for a DBS check
Notify all potential applicants of the potential effect of a criminal record history on the recruitment and selection process and any recruitment decision
Discuss the content of the DBS certificate with the applicant before withdrawing any offer of employment
Provide a copy of the DBS code of practice to the applicant upon request.
Written policies on people with a criminal record
DBS guidance states that organisations using criminal record checks should not have a complete ban on people with criminal records. The DBS requires organisations which use checks to have a policy on the recruitment of ex-offenders. Organisations are expected to only use the information on a DBS certificate in the context of such a policy.
Many organisations achieve this by simply using the example policy provided by the DBS. However, some have positive and detailed policies towards people with criminal records. To find out more about how an organisation may use the information disclosed, ask to see a copy of their policy. If you do this before apply, you may want to do this anonymously.
You may find the organisation uses vague language such as “We judge each case on its merits”. To get a clearer picture about how they will treat you, try to ask them some specific questions about your particular type of convictions and/or the particular areas of the company that interest you.
Handling and storing disclosed information
Information on a certificate
Organisations that wish to use a standard or enhanced check must comply with the DBS code of practice The code seeks to ensure that sensitive personal information is handled and stored appropriately and is kept for only as long as necessary. In particular, it is an offence for Registered Bodies to: –
Disclose information contained within a certificate to any person who is not a member, officer or employee of the Registered Body or, in the case of Umbrella Bodies, their client unless a relevant legal exception applies;
Disclose information to any member, officer or employee where it is not related to that employee’s duties;
Knowingly make a false statement for the purpose of obtaining, or enabling another person to obtain a certificate.
Persons guilty of such offences are liable to deregistration, a fine or imprisonment unless a relevant exception applies as outlined in DBS Guidance.
Self-disclosure
The DBS does not impose any rules on how organisations should handle information that you choose to disclose yourself.
However, all organisations have to follow the Data Protection Act 1998. As criminal record data is regarded as sensitive personal data under this legislation, they should have processes in place to ensure it is kept safe.
If you are worried about how an organisation will retain the information that you disclose, you should ask them for a copy of their data protection policy.
Getting a copy of your DBS records
Name
DBS records (often referred to a “DBS Subject Access Request”)
Issued by
Disclosure and Barring Service
Use
To see what information the DBS hold on their records about you. It can be useful if, for some reason, you no longer have a copy of the disclosure certificate that an employer undertook on you. Subject Access is a right provided under Section 7 of the Data Protection Act 1998 whereby any individual can ask any organisation what information they hold on them.
What it contains
This application will only return something if you have previously had a check carried out on you.
A subject access request to the DBS will provide you with copies of previous application forms, system notes, correspondence held and a print out of what was contained on the certificate(s). Please note – the printout is not a duplicate certificate; it provides a copy of what was released on the certificate in a different format. It should provide you with evidence of each check that has been completed on you and if any conviction information has been released on the certificate it would appear on the print out. The application form would also show the name of the organisation that submitted the check(s)
If you need to correct inaccurate personal information, such as your name, date of birth or address, you need to raise a data entry dispute. More details are available here
However, if it is that your conviction details are incorrect or inaccurate, you need to raise a data source dispute. This can be done online (you complete the form electronically, print and submit it by post). Alternatively, you can request a disputes form by post by calling 0870 9090 811.
Other information
The DBS does not hold a copy of the Police National Computer (PNC) record of convictions. The system held by the DBS is known as a PNC Extract. The extract contains basic identifying details such as name and date of birth of persons included on the PNC. The extract does not contain any conviction information. The police both own and maintain the Police National Computer.
Barring (Children’s Barred List and Adults’ Barred List)
The aim of this information is to explain what is meant by barring and to set out how the DBS decide whether they should consider you for barring. Further information on how to make representations and appeal a DBS decision can be found here.
If you are included on a barred list, then you will be breaking the law if you seek to work in regulated activity with a group from which you are barred. Likewise, employers will be breaking the law if they knowingly employ somebody who is on a barred list.
You need to be aware whether your offence is an automatic barring offence or an automatic inclusion offence, as this will dictate whether you are able to make representations against being placed on a barring list.
It’s important to know that, if at the time of your caution/conviction you are not working in regulated activity and your offence is a automatic inclusion offence, then the DBS will have no reason to consider you for barring. However, they can review this at any time in the future if you wish to work in regulated activity with either children or vulnerable adults.
If you are given the opportunity to make representations, then you should do so. The DBS will be more likely to add you to a barred list if you do not make a case for them not to do so.
Introduction
In September 2012 based largely on recommendations contained in the two reports – “A Common Sense Approach” (Criminal records regime review by Sunita Mason) and the government’s own “Vetting and Barring Scheme Remodelling Review”, changes were made that affected the organisation and some of the policies, processes and procedures of both the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).
In December 2012 the functions of both these bodies (CRB and ISA) were integrated and taken over by a new non-departmental public body, the Disclosure and Barring Service (DBS).
Whilst there has been no change to existing legal prohibitions on persons recorded in either the children’s or adults’ barred lists applying for positions (employed or voluntary) involving ‘regulated activity’, the definitions of what constitutes ‘regulated activity’ have been revised; both in relation to working with children and adults.
For anyone applying for positions involving regulated activity, barred list information (child, adult or both) will be included as part of the enhanced disclosure certificate (now known as an “enhanced check for regulated activity”).
However, it is important to realise that even if a position now falls outside the revised definition of regulated activity, it may still be entitled to an enhanced check (now known as an “enhanced DBS check”). This is because the previous employment and voluntary roles which were subject to the Rehabilitation of Offenders Act (Exceptions Order) and the Police Act 1997 have not changed.
Therefore employers and voluntary organisations are still entitled to request an enhanced DBS check for certain jobs, but are only entitled to request an enhanced check for regulated activity where the position meets the new definitions of regulated activity.
The Barred Lists
There are two barred lists; the Children’s barred list and the Adults’ barred list.
Since December 2012 these lists have been maintained by the Disclosure and Barring Service (DBS).
Inclusion in one or both barred lists results from information about relevant convictions or cautions and/or any other referral information which is assessed typically using a comprehensive risk assessment process (as outlined below), and the outcome suggests the person may pose a future risk of harm.
An employer or volunteer manager is breaking the law if they knowingly employ you in regulated activity with a group that you are barred from working or volunteering with.
If you are barred, you are breaking the law if you seek, offer or engage in regulated activity with a group that you are barred from working or volunteering with.
If you were barred prior to September 2012, you may review at any time whether you now, do not meet the test for regulated activity (where you have not, are not, and there is no indication you might in the future be working in regulated activity with vulnerable groups including children); or, where certain other statutory conditions are met. This is in addition to your existing right to seek areviewafter the minimum barring period.
Notification of barring
When the DBS are advised of a relevant conviction, caution or other information indicating that you may pose some risk of harm to vulnerable groups including children, it will formally notify you of this in writing. There are two types of formal notification.
Notification of inclusion in a barred list – This is where you have been convicted of an ‘Autobar’ offence. These are the most serious offences in which there will be no opportunity to make representations for removal due to the seriousness of the offence.
Notification of ‘Minded to Bar’ – These are either automatic inclusion offences (where you have been cautioned or convicted of a ‘relevant offence’) or where the DBS has assessed information and is minded to include you in a barred list. In these cases, you will be invited to makerepresentationsas to why you should not be barred prior to any final barring decision being made.
There are three main ways that the DBS will be aware that they should consider an individual for barring:
Discretionary referrals
Applications for enhanced checks
Automatic barring offences and Automatic inclusion offences
In all cases, except automatic barring offences, the DBS cannot include an individual on a list unless they can establish that the person is, has been, or might in the future be, engaged in regulated activity with children or vulnerable adults.
The test for regulated activity will be considered by assessing all information available to the DBS including the case material, police information and evidence of an application for an enhanced disclosure certificate to work with children or vulnerable adults.
Discretionary referrals
Under the current legislation, the following organisations can make referrals to the DBS:
Local authorities
Health and social care trusts
Education authorities in Northern Ireland
Keepers of registers in England, Wales or Northern Ireland
Supervisory authorities in England, Wales or Northern Ireland
Organisations who are not included in the above list can still refer individuals to the DBS if they have any concerns regarding safeguarding issues.
In these circumstances, the DBS will usually write to you informing you that they are ‘minded to bar’ and invite you to make representations before they include you on a barred list.
If you apply for a role that involves working in regulated activity where an enhanced DBS check will be carried out, and you have previously been cautioned or convicted of an automatic inclusion offence (irrespective of how long ago it was), then the DBS will consider whether you should be included on the barred list.
You will usually be sent a “minded to bar” letter by the DBS and given the opportunity to make representations as to why you should not be placed on a barring list.
If you have an automatic barring offence, you will have no opportunity to make representations as to why you should not be placed on a barring list.
Automatic Barring Offences and Automatic Inclusion offences
There have been legislative changes with respect to Automatic Barring offences and Automatic Inclusion offences following a judicial review. The key differences between the two are explained below:
Automatic Barring Offences – These are the most serious of offences and due to the severity of them, people cautioned or convicted of these offences are not able to make representations as to why they should not be included in a barred list.
Automatic Inclusion Offences – Where an individual is cautioned or convicted for an automatic inclusion offence, they are invited to make representations before they are included in a barred list.
It is important to note that some offences may be classed by either the victim(s) involved or the victim’s age.
The DBS originally published a factsheet which didn’t make it clear which offences are regarded as ‘automatic barring offences’, and which offences are regarded as ‘automatic inclusion offences’. Unlock brought this to the attention of the DBS, and they updated their relevant offences referral guide as a result.
The legislation which relates to the circumstances in which a person will be automatically included in a barred list can be found here. Sections 3 and 5 specifically refer to those offences where there is no right to make representation and sections 4 and 6 refer to those offences where there is a right to make representation.
The option to make representations, where available, will be advised in a ‘formal notification of barring’ letter. Those wishing to make representations should be aware that there are time limitations (8 weeks) for doing so.
A person who accepts a caution or receives a conviction for a ‘relevant offence’ which is an automatic barring offence will be automatically barred from working in regulated activity with children and/or vulnerable adults.
The DBS considers cases for barring based on:
Offences (convictions and cautions)
Referral information – evidence of inappropriate behaviour likely to harm children or adults
This information is collected from a variety of sources, including the police, employer referrals and regulators (holders of professional registers).
Certain types of employers and organisations have a legal obligation to refer relevant information regarding an individual. These include any employer providing regulated activity and any suppliers of personnel for work or volunteer positions involving regulated activity.
Similar referrals are optional for those employers working with vulnerable groups where regulated activities are not carried out.
With the exception of those persons having committed an offence leading to automatic barring without right to make representations, a person can only be included in the barred lists if they are, have been in the past, or are likely in future, to engage in regulated activity.
Once barring decisions are made, they are still open to both review and/or appeal in a number of circumstances.
Barring – The decision making process
On receipt of relevant information, the process of deciding whether to include the individual’s details on either or both barred lists follows a typical series of formal stages. The process can be terminated as a non-bar decision at anytime in stages 1 to 4. However, should there still be a perceived future risk of harm after assessment, the case progresses to the next stage, resulting in an inclusion in a barred list at stage 5. The diagram below illustrates the process followed in most cases:
A detailed factsheet on the decision making process is availablehere.
Am I barred?
To find out if you’ve been referred to the DBS and/or if your name has been placed on one of the barred lists, you’ll need to write to the DBS at:
Disclosure and Barring Service, PO Box 3963, Royal Wootton Basett SN4 4HH
with relevant proof of ID.
Current name
Date of birth
Current address
Signature
Current passport
Current photocard driving licence
EU/EEA National Identity Card
Recent utility bill
Council tax bill for the current year
Bank or building society statement
Mortgage statement
Benefits society passbook showing your current address
Local council rent card
Frequently asked questions
You have applied for a role that involves regulated activity and a DBS Enhanced check is being conducted on you.
Your caution or conviction is an automatic inclusion offence, therefore the DBS will consider whether you should be included on the barred lists.
The letter the DBS has sent you is called a “minded to bar” letter, which allow you to make representations as to why you should not be placed on a barred list/s.
There is a time limit of eight weeks to make your representations.
It is worth making representations (in 2013/14, 35% of people who made representations to their “automatic inclusion offence” won their appeals.)
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.
Discuss your views and experiences with others on our online forum.
Unlocking Criminal Record Checks – A guide for people with a criminal record
On a daily basis, our helpline gets calls from people who are applying for work and don’t know where they stand because of criminal record checks that (increasingly) employers are carrying out.
A couple of years ago, we approached the DBS (Disclosure & Barring Service – known as the CRB at that time) and raised this as a matter of concern. They agreed to support the production of a guide, specifically for people with a criminal record, designed to explain in detail the criminal record checking process, with particular focus on the specific issues that people with a criminal record might face.
The result is a detailed guide which was written by Unlock and which was circulated by the DBS (it was announced in DBS News September 2013). Download the guide here or click the image below.
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