Aim of this information
For anybody with a criminal record, a criminal record check can be the most terrifying part of the recruitment process. If you know that your conviction is spent and believe that the job you are applying for is eligible for a basic check, then you would be extremely concerned to subsequently learn that an employer would be doing a standard or enhanced check.
This information will assist you in challenging through the Disclosure and Barring Service (DBS), an employer who you believe is carrying out an incorrect criminal record check.
This Information forms part of our Disclosing to employers section.
Why is this important?
If an employer were to carry out an ineligible check, this could result in them becoming aware of a conviction which, legally, they are not allowed to know about. You may find that once they are aware of it, they decide to withdraw the job offer.
Through the DBS, employers are able to conduct standard and enhanced checks for certain roles, which will disclose both spent and unspent convictions. Sometimes employers request DBS checks for roles that only require a basic check. Therefore, the wrong check is being applied for. This could result in the disclosure of a spent conviction which should not be disclosed. The DBS has a system which allows you to query these ineligible checks, to ensure that the correct checks are done for the correct roles, so you only disclose what you legally have to.
Step 1 – Is the role eligible for a DBS check?
Many employers can legally conduct a standard or enhanced check on the roles they are advertising and they will make this clear during their recruitment process.
If you believe the role is eligible for a DBS check, then disclose all cautions/convictions that are not filterable.
If you have good reason to believe that an ineligible check is being requested, then you may not want to disclose your spent cautions/convictions until you have had a chance to query this through the DBS.
Step 2 – Consent to the check
Where you believe that a check is ineligible, at this stage it is best to consent to the check. If you do not consent, then this may raise warning signs with the employer that you do have convictions. You should tick “no”, to the question about cautions and convictions. You do not want to disclose any spent convictions, as the DBS may subsequently find that the check is ineligible.
Step 3 – Immediately raise this with the DBS
Once the employer has submitted the application, you can then challenge it through the DBS. You will have to provide sufficient information to the DBS so that they can locate the check.
Information to be provided
E-mail firstname.lastname@example.org with the following information:
- In the subject line of the email, enter “APPLICATION ELIGIBILITY QUERY – URGENT”.
- In the email, you should include as much information as possible, including your full name, your current address, your date of birth, the position applied for, the organisation name, the Registered Body number and the DBS form reference (11 digits on the top right).
- You should also include details of why you think the application is not eligible.
- State clearly that you would like the DBS to put the check on hold pending an outcome to their assessment of eligibility.
What the DBS will do
Once the DBS has received your eligibility query, they will place the application on hold. They will contact the employer to gain more information, but they will not disclose that it is you that has queried the check. At some point the DBS will:
- Contact you to establish your details and get your consent to contact the employer.
- Contact the employer (normally by letter), to establish eligibility.
- If eligibility remains in doubt after first contact, correspond with the employer and liaise with DBS policy officials when assessing the organisation’s responses.
If the DBS decide the check is ineligible, the application will be stopped and the employer informed. The employer will still have the option of conducting a basic check on you if they feel it is appropriate.
If the DBS decide the check is eligible, the application will continue and the DBS will inform you of this. At this point you will have to decide if you wish to continue with your job application or withdraw it. If you continue then you should make sure you disclose any conviction to the employer that will be disclosed on the check. It is best to do this as soon as possible, face to face, so you can discuss any mitigating circumstances and answer any questions they may have in connection with the conviction.
Sometimes the DBS are unable to advise whether the role is eligible for the level of check being applied for. In this case, you will either need to raise your concerns with your employer or seek legal advice.
The results so far
So the message we want to give is, if you think a job is carrying out an ineligible check, then challenge it.
Taking further action
If the DBS stops the application (or even if they don’t), you may decide to take further action. If an organisation submits an application for a position that they know is not eligible, they may have committed a criminal offence, as per the following: –
- Section 123 of the Police Act 1997 states: “a person commits an offence if he knowingly makes a false statement for the purpose of obtaining, or enabling another person to obtain, a certificate under this Part.”
- The DBS Code of Practice sets out employers’ obligations in respect of the use of information obtained through standard and enhanced check. A failure to comply with these provisions and performing ineligible checks beyond the scope of the Exceptions Order could lead to a breach of the Data Protection Act 1998.
- The DBS Code of Practice requires that Registered Bodies must: “use all reasonable endeavours to ensure that they only submit Disclosure applications in accordance with the Disclosure eligibility criteria for relevant positions or employment.”
- A signed statement has been made by a registered person.
Via the DBS
The DBS would first seek to stop the problem happening again by educating the organisation. If that was unsuccessful, the DBS would consider suspension. If the organisation persistently and knowingly submitted ineligible applications then they would be deregistered. However, this action is incredibly rare.
If you believe that the DBS has failed you in some way, you may want to take the matter further by making a complaint.
Via the ICO
The ICO expects the DBS to have preventative measures in place to prevent unauthorised checks. This is because they are defined as a ‘data controller’ under the Data Protection Act 1998.
If you believe that an ineligible check has been made by an organisation for your information you can call the Information Commissioners Helpline on 0303 123 1113 to discuss your complaint.
The ICO can only act once the organisation has obtained the information (as per Section 55 of the Data Protection Act). They normally require you (the complainant), to have some form of written evidence.
If you make a complaint, the ICO will decide whether the organisation has complied with the relevant legislation. The organisation will be informed of their decision, where they need to improve and how they need to rectify the situation with you. If an organisation does not show progress after a number of complaints on the same issue, the ICO’s enforcement team will take over and decide on further action.
Via the Ministry of Justice
Despite having policy responsibility for the ROA and its exceptions, the Ministry of Justice does not have a casework or investigative function. They cannot offer legal advice or investigate breaches of the ROA.
Via the Police
If you suspect that somebody has committed an offence under section 123(1) of the Police Act 1997 (see above), you can report it to the police. However, don’t be surprised if the police don’t make your case a priority. Despite the number of potential breaches, no Registered Body has yet been prosecuted under this section.
- For practical self-help information – More information is avaliable in our disclosing to employers and understanding your criminal record sections
- Our policy work – Read about the policy work we’re doing on the issue of ineligible checks
- Questions –If you have any questions about this, you can contact our helpline
Help us to add value to this information. You can:
- Comment on this information (below)
- Send your feedback directly to us
- Discuss your views and experiences with others on our online forum
- Share your personal story by contributing to our online magazine, theRecord
- Help us challenge this issue – Send us evidence of bad practice, where you are aware that an employer may be conducting ineligible checks