Hannah Roberts

Paralegal

DATE PUBLISHED: 16 Mar 2022 LAST UPDATED: 23 May 2022

When can you ask for a DBS check?

Often we are asked by businesses whether they can introduce DBS checks for new staff, usually due to concerns surrounding both past and current convictions. For example, I have been asked recently whether checks can be carried out to ensure there is no history of theft for employment in the retail sector.

Employers are not generally entitled to full disclosure of previous convictions and cautions. The law enables convictions to become ‘spent’, and a convicted person to become ‘rehabilitated’, at the end of a specified rehabilitation period (dependant on the offence etc.). These protections apply to:

  1. Questions that you can ask candidates; and
  2. Information that can be disclosed in a DBS check.

There are four levels of DBS check:

  1. Basic: returns details of unspent convictions and conditional cautions.
  2. Standard: returns details of spent and unspent convictions, cautions, warnings and reprimands.
  3. Enhanced: same as a standard check, plus any non-conviction information held by local police relevant to the role.
  4. Enhanced with barred list: same as enhanced, plus whether the individual appears on the Adults’ and/or Children’s barred list.

There is a useful tool on the Government website where you can find out which level of DBS check you can carry out for a certain role.

Any business can do a basic check, or any position or purpose, which will return details of unspent convictions. However, only certain roles are eligible for the remaining levels of checks.

Prescribed ‘exceptions’ apply for roles that are eligible to be submitted for Standard and Enhanced DBS checks. These relate to professions (i.e. teacher, vet, accountant, nurse etc.), those who hold offices (i.e. judges, probation officers etc.), regulated occupations (i.e. managing a nursing home), health & social care (i.e. care home worker, social worker) and national security (i.e. Crown employees).

If the job role does not fall within the prescribed exceptions, you will not be eligible to request a standard or enhanced check. Instead, a basic check can be carried out but this will not provide details of any spent (past) convictions. In the case of the retail business recruiting a shop worker, they were not eligible to carry out a standard check to look for any historic convictions of theft and were limited only to a basic check.

Also remember you may need to check/ update GDPR policy/privacy notice if you are asking for DBS checks.

If you would like to speak to one of our expert Employment lawyers, please call 01202 525333.

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