Criminal Record Checks - Guidance Document

Conducting background checks is a standard part of most recruitment processes.

Employers should complete these checks promptly to keep the hiring process on track and ensure the recruitment process can move along and the new starter can commence their employment.

The scope and type of background check an employer chooses to carry out will depend on the specific requirements and responsibilities of the role.

Employers should keep candidates informed about carrying out background checks by:

1. Clarifying upfront at the application stage what checks will be carried out and when.
2. Specifying required information from candidates to complete the checks.
3. Monitoring progress to avoid delays in recruitment.
4. Updating both candidates and line managers on the status of checks.
5. Discussing any concerns with the candidate if issues arise and allowing them to respond before deciding to withdraw the offer.

Criminal Record Check

Employers should have a clear policy outlining the purpose and process for conducting criminal record checks, including who is responsible, how checks are integrated into recruitment, and who can access the results.

Given the sensitivity of this information, strict adherence to the policy and confidentiality protocols is essential to avoid disputes or breaches of data protection laws.

Previous Criminal Convictions

The Rehabilitation of Offenders Act 1974 allows convictions to become "spent" after a certain period.

A spent conviction is a criminal conviction that has completed its rehabilitation period, meaning the individual is not legally required to disclose it to employers or other entities There are exceptions to this.

This allows job applicants to be treated as if their conviction had never happened.

Job applicants state they have no past convictions if asked, once those convictions are spent.

The Act does not ban employers from asking about convictions during the recruitment process, but questions must not concern spent convictions.

Employers must follow data protection laws by not collecting unnecessary personal details, like information about spent convictions.

It is illegal to turn down an applicant for not sharing a spent conviction, and if any such conviction is found out, it should not be considered during the recruitment process. There are exceptions to this.

Rehabilitation Periods

The period after which convictions are considered spent depends on the type and duration of the sentence (specified in section 5 of the Rehabilitation of Offenders Act 1974).  

The rehabilitation periods listed below are applicable in England and Wales. Scotland uses different timeframes, described as "disclosure periods," while Northern Ireland has its own rules.

For individuals aged 18 or over at the time of conviction, the following rehabilitation periods apply in England and Wales:

For individuals aged 18 or over at the time of conviction, the following rehabilitation periods apply in Scotland:

For individuals aged 18 or over at the time of conviction, the following rehabilitation periods apply in Northern Ireland:

Rehabilitation periods are halved for those convicted under age 18 in England and Wales and in Northern Ireland  

An absolute discharge results in no rehabilitation period, so the conviction is spent immediately.

For custodial sentences, the rehabilitation period starts after completing the sentence, for example, a one-to-four-year prison term carries a four-year rehabilitation period beginning at sentence completion.

If another conviction occurs during this period, both convictions remain unspent until the longer rehabilitation period ends.

Exclusions

Some sentences are not eligible for rehabilitation under the Act and never deemed as spent, such as:

• life imprisonment,
• preventive detention, and
• certain public protection sentences

Exempt Jobs

Certain jobs are exempt, allowing employers to ask about cautions and spent convictions during the recruitment process and reject applicants based on these, unless protections apply.

Employers must inform candidates if a role is exempt.

Exempt roles for England and Wales are listed in the Act (Exceptions) Order 1975, and for Scotland in the corresponding 2013 Order.

The Disclosure and Barring Service (DBS) offers guidance on required check levels for different roles.

The following are examples of positions that are typically classified as exempt:

• healthcare professional;
• veterinary surgeon;
• solicitor, barrister (England and Wales);
• fire and rescue authority employees;
• chartered accountant, certified accountant;
• police constable, prison officer, providers of probation services;
• traffic warden;
• taxi drivers;
• posts requiring a Security Industry Authority (SIA) Licence;
• social workers;
• post involving schooling or other dealings with young people (including teachers in England and Wales);
• foster carers;
• childminders;
• posts involving regulated activity with adults; and
• post involving regulated activity with children or vulnerable adults—whether done frequently or infrequently.

Criminal Record Filtering and Disclosure

Certain convictions and cautions are classed as "protected," meaning they do not need to be disclosed by candidates and cannot be considered by employers when making recruitment decisions.

These include all youth reprimands, final warnings, and cautions, as well as youth conditional cautions after three months and adult cautions after six years, provided they are not for listed offences and did not result in a custodial sentence.

Protected cautions and convictions are automatically filtered out of Disclosure and Barring Service (DBS) certificate checks.

However, in a small number of defined roles, such as those relating to national security or requiring firearms certificates, all convictions and cautions must be disclosed and may be taken into account.

Employers should consult the DBS filtering guide for full details of recruitment and filtering rules.

Data Protection

Under GDPR, employers need a legal basis and must meet certain criteria to handle criminal record data in hiring.

Processing information about convictions is usually permitted if necessary for employment law purposes, such as obtaining data from the DBS or Disclosure Scotland.

Organisations must have a written and accessible policy for the use, retention, and erasure of criminal records data, keep this policy up-to-date, and make it available for inspection and to job applicants.

Consent from applicants is not considered a valid basis for processing criminal records data due to the imbalance of power in the recruitment process.

Unless legally required (for roles in regulated professions), employers may find it difficult to justify criminal records checks for recruitment.

Employers registered with the DBS must also maintain a written policy on the secure handling of data received via the DBS.

Enforced Subject Access

Employers cannot require job candidates, employees, or contractors to use their subject access rights to disclose "relevant records" such as convictions, unless required by law or proven public interest.

This rule prevents employers from accessing more information than allowed through formal channels like the DBS or Disclosure Scotland.

Subject access requests to police reveal both spent and unspent convictions; DBS only discloses unspent convictions. Enforcing subject access requests is a criminal offence, punishable by a fine.

The Information Commissioner's Office provides guidance on enforced subject access.

Employers must not require job applicants, employees, or contractors to use their subject access rights (under UK data protection law) to obtain personal records such as criminal convictions, as a condition of employment or engagement.

This practice can expose spent convictions, which are protected under the Act. Employers should instead use formal channels like the DBS or Disclosure Scotland, which only reveal unspent convictions.

Enforced subject access is a criminal offence, punishable by a fine.

The only lawful exceptions are where disclosure is required by law or where it is in the public interest although this is rarely justifiable in practice.

Access to Criminal Records

In England and Wales, candidates and prospective employers can request criminal record information from the Disclosure and Barring Service (DBS). In Scotland, this is handled by Disclosure Scotland.

Employers registered with the DBS can request standard, enhanced, or enhanced with barred list checks for eligible roles, in partnership with the applicant. Employers are required to confirm legal eligibility prior to initiating these checks and must refrain from improperly using subject access rights to acquire additional criminal history information.

More information is in the DBS Guide to eligibility for criminal record checks. 

There are four types of DBS Checks

1. Basic DBS Check

What it shows: Unspent convictions only.

Who can request it: Anyone, including individuals for themselves.

Common uses: Roles not involving vulnerable groups, such as retail or admin positions.

2. DBS Check

What it shows: Spent and unspent convictions, cautions, reprimands and warnings (from England and Wales)

Who can request it: Employers, but only for roles eligible under the Rehabilitation of Offenders Act 1974 (Exceptions) Order.

Common uses: Legal, financial, and security-related roles.

3. Enhanced DBS Check

What it shows: Everything in a Standard check

Any additional information held by local police that’s relevant to the role

Who can request it: Employers for roles involving regular contact with children or vulnerable adults.

Common uses: Teaching, healthcare, social work.

4. Enhanced DBS Check with Barred Lists

What it shows: Everything in an Enhanced check

Whether the applicant is on the Children’s Barred List, Adults’ Barred List, or both

Who can request it: Employers for roles that involve regulated activity with children or vulnerable adults.

Common uses: Childcare, nursing, care homes.

Safeguarding: Working with Children and Vulnerable Adults

There is a centralised vetting system under the Safeguarding Vulnerable Groups Act 2006 for individuals barred from working with children or vulnerable adults, in both paid and voluntary roles across sectors like education, health, and care.

Ensuring the safety of children and vulnerable adults is a critical throughout the recruitment process.

The Safeguarding Vulnerable Groups Act 2006, alongside subsequent updates and best practices, requires organisations to take specific steps to prevent unsuitable individuals from working with these groups.

1. DBS Checks: Prior to offering any role that involves regular contact with children or vulnerable adults, employers must conduct an enhanced DBS check. This includes checking the relevant Barred Lists to confirm that the candidate is not prohibited from such work.
2. Barred Lists: The DBS maintains separate Children’s and Adults’ Barred Lists. It is a criminal offence for individuals on these lists to apply for, or undertake, regulated activity with children or vulnerable adults. Likewise, it is illegal for employers to knowingly employ someone barred in these capacities.
3. References and Employment History: Recruitment procedures should include a thorough review of the applicant’s employment history and the acquisition of professional references, particularly from previous roles involving children or vulnerable adults. Any gaps or inconsistencies should be explored during the interview process.
4. Safer Recruitment Training: Those involved in the recruitment and selection of staff and volunteers should be trained in safer recruitment practices, as recommended by current government and safeguarding guidelines
5. Ongoing Duty to Refer: If, during or after employment, an individual is found to have caused harm or to pose a risk of harm to children or vulnerable adults, organisations have a legal duty to refer this information to the DBS. This helps to protect other organizations and service users in the future.
6. Regular Policy Updates: Recruitment and safeguarding policies should be regularly reviewed and updated to reflect changes in legislation and best practice guidance, including updates from the DBS and the Department for Education.

By following these steps and integrating safeguarding considerations into every stage of the recruitment process, organisations help ensure the protection and well-being of children and vulnerable adults in their care.