Whether you are awaiting the results of a Basic, Standard or Enhanced DBS check for a potential employee, you will, of course, be hoping that the report comes back clear so that you can sign contracts and get your candidate working as soon as possible.
But what do you do if the check comes back with a criminal history? As an employer, it is illegal to discriminate against an individual based on their criminal record, unless the conviction shows that it would be unsafe to employ the candidate.
Below, we discuss what you are supposed to do in these circumstances.
Firstly, what is a clear DBS check?
A clear DBS check means that there is no record of criminal history against the individual being checked. However, this doesn’t mean the candidate has never been in trouble with the law.
Spent convictions do not show on Basic DBS checks (but will on standard or enhanced checks) and some crimes will be filtered out to protect the candidate under the Rehabilitation of Offenders Act 1974.
When can you not offer a job to someone based on their criminal history?
You’re probably wondering when you can legally renege on a job offer following a DBS check. The only occasion where it is legal to do so depends on:
- If the role involves a regulated activity
- The crime is relevant to the job, i.e., the role is in retail, and the candidate was caught stealing
It is worth referring to the Rehabilitations Act on each occasion to ensure you are operating lawfully.
If the offence is not relevant to either of these points, it is illegal to discriminate against them based on their criminal history.
What to do if a candidate’s DBS check comes back with a criminal history
- Ensure the information stays confidential
Whether or not you employ the individual, you must never discuss the DBS findings with other people, including those in your employ. You can only discuss the results with third parties with the consent of the candidate. Revealing information from a DBS check would put you in breach of Data Protection legislation.
- Check the Rehabilitation of Offenders Act
You must reach a fair decision when you come across a DBS check with criminal activity. The Act recommends you consider the following:
- How old was the candidate when the crime took place?
- How long ago was the offence?
- Is there a pattern of offence, or was this an isolated crime?
- What was the nature of the crime?
- Is the crime relevant to the position?
- What do you know about the candidate’s activity since the offence took place?
- Speak with the candidate
Have an open and honest conversation with the candidate on the results of the check. The aim is to gather enough information to help you make an informed recruitment decision. This should only happen if the conviction or caution is relevant to the role.
If a candidate does not wish to show you their certificate, you are in your rights to reach a decision with that in mind. To prevent this from happening, you should clearly state the requirement to present a certificate as part of the recruitment process.
What to do if a previously clean DBS check comes back with new information following employment?
A DBS certificate is essentially only valid up until the point the certificate is issued. Therefore, we recommend that you regularly update the check. (When you use our systems, you can see how old each check is and request an update.)
If a new conviction is unsurfaced that directly impacts your employee’s eligibility to carry out their job safely, you have the right to terminate employment.
However, we recommend reviewing the Rehabilitation of Offenders Act 1974, the DBS policy and the Recruitment of Ex-Offenders and speak with your employee before reaching any decision.
What to do with the DBS information
When it comes to storing the information, ensure that you are fully compliant with the Data Protection Act 2018, GDPR, and any other legislation. All physical copies of DBS information have to be stored:
- In a secure, lockable storage container
- The container cannot be portable
- Access to the container must be strictly controlled
- Only those who are entitled to view the information should be granted access
- Encrypted if the data is help on a computer
- The computer records should be password-restricted
When you use our online system to store your checks, everything is held within an IOS27001 secure centre.
All DBS records should be destroyed six months after a recruitment decision is made.
If the DBS check on a potential candidate, or even an employee, comes back with criminal activity and you require legislative advice, please do get in touch. As an umbrella body of the Disclosure and Barring Service, we would be happy to help.