Do DBS Checks Transfer under TUPE?

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TUPE stands for Transfer of Undertakings, Protection of Employment, it is used when a company has been bought by or merges with another company. In layman’s terms, it is to protect the transferring employees by ensuring terms and conditions of the employment stay the same, such as; contract of employment, company benefits such as pension arrangements or holiday allowance, and it also protects from unfair dismissal. 

The most commonly asked question about TUPE transfers are surrounding DBS (disclosure and barring service) checks, do you have to redo the affected employee’s checks all over again?

Will I Need A New DBS Check?

The short answer is maybe, the longer answer is a bit more complicated…

A DBS check is used to see if you have any unspent criminal convictions, they come in three levels; a basic DBS check, standard DBS check and enhanced DBS check. It may be assumed that if you move to a new employer by TUBE, your certificate should move with you, although there is no specific law on this issue. Many employers are happy with this thinking, but as there is no expiry date on the certificates, some employers may feel uncomfortable taking on someone they don’t know. 

Although it’s not illegal to have a policy of doing new DBS checks, employees have to either check everyone or no one to be fair.

Should I accept a previously issued DBS Certificate?

There are a few things to consider as an employer when deciding to accept a previously issued check or not:

  • Is the DBS Certificate authentic? There are features which can be used to certify the authenticity:
    • There should be a ‘Crown Seal’ repeated down the right-hand side, visible on the surface and whilst being held up to a light source.
    • The word ‘Disclosure’ incorporated into the background design of a wave-like pattern, with a uniform colour on the front, but the back alternating between green and pink.
    • There is colour changing ink and paper when contact is made with water.
  • How old is the DBS Check? Although it may still be ‘within date’ – generally checks should be carried out every 3 years – the employee could have a further developed criminal record since being issued the check.
  • Enhanced checks may contain ‘additional’ non-conviction information that is withheld from the applicant’s copy for the prevention or detection of crime.

What’s The Process Of Getting A New DBS Check?

During TUPE, most roles carry on pretty much the same as before the transfer, which means your new employer can only ask you to have a new DBS check if your role remains unchanged. 

If your new employer wants you to get a fresh DBS check they will be paying for it, TUPE regulations forbid them from asking employees to pay. The process of getting a new DBS certificate will be exactly the same as in other circumstances. 

You will be asked to complete an application form, either online or on paper. This is the same form you would have used when you applied for your first DBS check. As usual, you will be asked to provide the original identifying documents and proof of address such as a birth certificate or passport, and utility bills or bank statements.  

If you’re looking to get a fast and easy DBS check for your employees, choose Care Check, where you will receive your results in under 24 hours.