Criminal records—asking questions and DBS checks

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Criminal records—asking questions and DBS checks
  • Key principles
  • Jurisdiction
  • Requiring data subject access requests
  • Checks and certificates for applicants from overseas
  • Criminal records checks and the rehabilitation provisions—an overview
  • Where the role is excepted from the ROA 1974 protections
  • Where the role is not excepted from the ROA 1974 protections
  • Spent convictions
  • Reconviction during rehabilitation period
  • More...

Criminal records—asking questions and DBS checks

FORTHCOMING CHANGE: Under proposals, announced on 16 September 2020, to reduce the time it takes for certain convictions to become ‘spent’ so that they are no longer automatically disclosed on employment checks (1) custodial sentences of up to one year will become ‘spent’ after 12 months without reoffending, (2) convictions between one and four years will become ‘spent’ after four crime-free years, (3) sentences of over four years will not need to be automatically disclosed to employers where there has been a seven-year period of rehabilitation, and (4) if an individual re-offends during their rehabilitation period, they will need to disclose both the original and subsequent offences to potential employers, ‘for the duration of whichever rehabilitation period is longer’. These proposed changes will not apply to convictions relating to serious sexual, violent or terrorist offences. For further information, see LNB News 16/09/2020 83.

This Practice Note considers the extent to which employers can ask questions of a prospective employee about criminal convictions and cautions, and carry out checks with the Disclosure and Barring Service (DBS).

Employers may wish to know whether a prospective employee has a criminal record, for example because:

  1. it reflects on the employee’s character and suitability for the position, or

  2. the information is required for regulatory purposes

Such information may be obtained by asking questions

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