Disclosure and Barring Service checks and self-disclosures - Guidance for managers April 2024

What to do if a conviction is disclosed which may affect the person’s suitability for the post

Managers may receive disclosures containing previous convictions and/or cautions, or other information concerning the person’s suitability for the post, in the following circumstances:

• Job applicants or Volunteers (who have been offered a post subject to satisfactory pre-employment checks). These could be internal or external applicants.
• Existing employees who are the subject of periodic re-checking
• Existing employees who report a change in their criminal record or other information of concern
• Ad hoc information about an employee or volunteer which is brought to the manager’s attention

Disclosures could be received via a DBS check, or from a self-disclosure made during the job application process, or a self-disclosure made by an existing employee, or other information such as a news report of a court case.

11.1 Can someone with a criminal record be employed?

The only circumstances in which an employer may NOT legally recruit a person with a certain type of offending history, is where that offending history has led to the individual being barred from regulated activity with either children, adults, or both. If you are recruiting for a role that is defined as regulated activity with children or adults, you must not employ a person who has been barred from working with the relevant group.

In all other circumstances, it is completely at the discretion of the employer to make their own recruitment decisions, which should be made on a case-by-case basis, assessing risk in relation to the nature of the role.

Seek the advice of your HR team before completing your assessment.

See Appendix 4: Risk Assessment template

11.2 A job applicant’s (or volunteer’s) DBS check has revealed details of cautions and/or convictions. What should I do?

If the certificate confirms what the applicant has already disclosed. Speak to your HR Team before contacting the applicant to discuss the disclosure(s). Once you have all the information you need, complete the risk assessment form and decide whether or not you are able to continue with the recruitment. The following sections give further guidance. If the certificate reveals information that the applicant had not previously disclosed. See 11.6 below.

11.3 What information should I consider when determining whether an applicant with a criminal record is suitable for the post?

Firstly, think about the post and consider the following aspects:

• Does the post involve one-to-one contact with children, or other vulnerable groups such as service users?
• What level of supervision will the post-holder receive? Is the post unsupervised? Does it involve working in isolation?
• Does the post involve any direct responsibility for finance, cash or items of value?
• Does the post involve a significant level of trust?
• Does the post involve direct regular contact with the public?
• Will the nature of the job present any opportunities for the post-holder to reoffend in the course of work?
• Are there any safeguards which can be put in place to minimise any potential risks? 

Secondly, you should meet with the applicant to gather more information about the relevance of their criminal record. Based on the information provided, you should take into account the following:

Nature of Offence(s)
What type of offence or offences did the individual commit? i.e. theft, fraud, violence, possession of drugs, supply of drugs, sexual offences, public order or other offences. Did the offender commit one type of offence or a range of different offences?

Relevance
You should consider whether the offence is relevant to the position in question. The relevant categories of offences in relation to the protection of children are generally considered to be serious, violent, sexual and drug-related offences, although the nature of the offence is not the only factor that ought to be considered. For example, a person with a previous history of drug-related convictions who has clearly moved on from that period may be particularly well-suited to support others with substance misuse problems.

For work with vulnerable adults, the relevant categories are generally considered to be violent and sexual offences. Offences of dishonesty, such as fraud, may be relevant if the nature of the post involves unsupervised access to money and valuables.

Drink-driving offences are not generally considered relevant unless the job itself involves driving.

Seriousness
You should consider the seriousness of any offence or allegations disclosed. This is important because all offence categories cover a very wide range of offences that vary in terms of seriousness. A sexual offence, for instance, covers everything from underage sex to indecent assault and rape. Violence covers everything from battery or common assault to grievous bodily harm and murder. Drug offences cover everything from possession of small amounts of class B drugs (such as cannabis) for personal use to possession of class A drugs with intent to supply. Burglary covers illegally entering to steal from a non-domestic property to entering someone’s home to steal. Robbery is stealing using force whilst aggravated burglary involves the use if a firearm or weapon. Arson ranges from reckless damage of property to intentionally destroying property and endangering lives.

The penalty applied may also give some indication of the seriousness of the case. The name of the offence (the offence code) does not indicate the seriousness of the incident, which is why it is important to gain further details of what actually took place and to consider the other factors listed.

Offence Circumstances
Who was involved? What happened? Where did it happen? When did it happen? How did it happen? Why did it happen?

You should consider the circumstances and the explanation offered by the applicant. Consider whether there were any aggravating or mitigating circumstances. What was the applicant’s attitude to their offending? Did they show any remorse or take responsibility for their actions? Did they try to make reparation to any victim?

In particular, take into account the applicant’s own circumstances at the time of the offending behaviour including issues with accommodation, education, employment, management of finances and income, lifestyle and associates, relationships, drugs and alcohol, emotional well-being or health.

You should also consider that a person convicted of a serious offence may have completely changed their life around for the better.

It is important to be aware that it is very difficult for an applicant seeking to show themselves in the best possible light to a prospective employer, to have to then discuss past matters that they may feel ashamed or embarrassed about. Taking that into account, you should look for openness and honesty, rather than denial and minimisation. You should consider the applicants’ insight into their own behaviour, any indication of changed thinking, relevant changes in their circumstances and, where relevant, victim empathy rather than victim blame or shared responsibility.

Age of Offences
Employers should consider the length of time that has passed since the offence that has been disclosed took place. Cautions or convictions that appear on a disclosure certificate may be very old, for example, dating back to when the person was growing up. They may not be relevant if applicants have put their past behaviour behind them.

The government recognises that people can and do put their offending behind them. This recognition is embodied in the Rehabilitation of Offenders Act 1974 and by the introduction of the filtering system for positions subject to standard or enhanced disclosure checks. Reoffending statistics in the UK indicate that if individuals go more than two years without reoffending, they are no more likely to offend again than those who have never offended.

Pattern of Offending
Employers should consider whether the applicant committed a single offence, or whether there has been a pattern of offending behaviour or allegations. Is there a big gap between offences, or are there a number of offences within a short period? People who have a pattern of offending right up to the present date may not have put their offending behind them.

Those people with gambling, drink or drug-related convictions, in particular, may remain a risk unless there is evidence of a clear break in the pattern of their offending. Nevertheless, many offenders, including repeat offenders, do eventually give up crime. They may have a particular motivation for doing so (e.g. becoming a parent) and often there will be clear evidence shown throughout the other aspects of the recruitment process and on the disclosure certificate.

Changed Circumstances
You should take into account whether the applicant’s circumstances have changed since the offending took place. For instance, those convicted when young, perhaps as juveniles, often do not reoffend as mature adults.

As part of the risk assessment, you should try to establish the applicant’s attitude at the time of the offence. What is their attitude now? How do they now feel about what happened? How do they feel about their part in what happened? Do they show remorse? Do they blame others? Do they feel a victim of injustice? How genuine is their expression? What efforts have they made not to reoffend? Can a reference be sought from their probation officer or support worker if they have one?

Having reviewed the circumstances at the time of the offence, you should then compare the applicant’s circumstances at the time of them applying for the role. It may be that the applicant can provide the necessary reassurance that past issues have been resolved. However, many people with more recent convictions will also have reached the point where they want to put their offending behind them and put their talents to constructive use. If the offence is not work-related, or if the post is at a level of responsibility which means that the applicant does not pose a risk, you might consider recruiting them if, in all other respects, they are suitable for the job.

11.4 Conducting a meeting with the applicant, volunteer, or employee

You should give the applicant the opportunity to address any concerns that you may have or any discrepancies in the information they have disclosed. Wherever possible, this is best done in the form of a face-to-face meeting with the applicant.

It is important that you make it clear to the applicant that the purpose of the meeting is to discuss any relevant information that can inform your risk assessment. Making your reasons clear is more likely to instil confidence in the applicant that their disclosure will not necessarily count against them and will encourage them to be more open with you. Try to conduct any such meeting with sensitivity and empathy, as discussing past convictions may be a source of great anxiety and embarrassment for the person concerned.

Think carefully about the questions you plan to ask and keep the discussion focused on the individual and their feelings and attitudes. It is best not to conduct the meeting alone. Invite a colleague who was involved in the recruitment process to provide support and take notes or ask your HR adviser for support. It is also important to remember it is not for you to decide whether the court’s decision or police course of action was the right or fair one. The purpose of the interview is to help you to gather the necessary information to assess whether the individual may pose a risk in the position applied for.

11.5. How should I carry out a disclosure risk assessment?

A risk assessment form must be completed by the Recruiting manager with advice from your HR Business Partner. See Appendix 4: Disclosure Risk Assessment for the proforma to be used.

Where the disclosure relates to a School Governor or a Head Teacher, the school is advised to seek advice from the Director of Education and Children.

Before you carry out your risk assessment, it is important that you have gathered as much information as possible to inform your assessment. In addition to the information gathered from meeting the applicant / employee, other sources may include answers given on the application form and during interview, self-disclosures, DBS disclosure certificates, value-based interview notes, references and independent statements from support workers or probation officers.

Once you have gathered all the relevant information, you should carry out your risk assessment with advice from your HR Business Partner. If you identify any potential risks, you should assess whether appropriate safeguards can be put in place to minimise these risks. The assessment should be a documented decision-making process that is signed by those undertaking the assessment.

Only convictions which are relevant to the role which an individual applies for should be taken into consideration. Past “spent” convictions which would not impact on an individual's ability to perform a role competently and safely, should not bar an individual from taking up a position within the Council.

A record of the decision should be kept and communicated in writing to the Recruitment team and the applicant.

If you proceed with recruitment, the risk assessment should be retained (on the HR personnel file).

If you are subject to inspection by a regulating body, such as CIW or Estyn, or if you are subject to safeguarding audits, you should keep the risk assessment for the purpose of such inspections or audits.

If you have decided not to proceed with the recruitment of the applicant, keep the risk assessment for as long as the individual has to raise a dispute, appeal the decision or lodge an employment tribunal claim if they feel the decision was discriminatory.

If the applicant is an existing employee of the Council, you should consult your HR Adviser on whether there are any further actions that need to be taken.

11.6. There are discrepancies between the information provided by the applicant and the information on their DBS check. What should I do?

Firstly, you need to consider whether you gave the applicant a reasonable opportunity to make a criminal record declaration during recruitment. The onus is on the employer to request such information; the applicant has no legal duty to disclose criminal record information if they have not been asked directly to do so. The Council usually relies on its on-line application process which requests this information at an appropriate stage in the recruitment process. If the recruitment process differed from this standard route, you should check if a criminal record declaration was requested.

If there are significant discrepancies between the information the applicant has provided and the criminal record information contained on the disclosure certificate, you should request a meeting with the applicant to gather further information. The DBS code of practice states that an employer should discuss any new matters (including other relevant information) revealed in the disclosure, with the applicant before making a final recruitment decision. It is important that the applicant is given the opportunity to address the employer’s concerns.

You should not assume that when an applicant has not declared a criminal record that later comes to light on a disclosure certificate, it is an attempt to obtain employment by deception. If it has been made clear in the job advert and job profile that an appointment is subject to a DBS check, applicants will be far less likely to conceal their records deliberately.

In some cases, a discrepancy may have occurred because the applicant simply did not realise that they had a criminal record or was mistaken about the type of sentence or disposal they received due to a limited understanding of how the criminal justice system works. The changes to disclosure legislation, including the ROA and the ROA Exceptions Order, are extremely complex and many receive incorrect or outdated advice about their responsibilities to disclose. Without knowing exactly what information is contained on their criminal record and in the absence of appropriate guidance on what information needs to be disclosed, there is a possibility that applicants can simply make a mistake.

In some instances, it may be clear that a particular applicant is unsuitable for the post they have applied for because of their record. However, it is important not to make this decision without gathering more information from the applicant. The risk assessment must still be recorded with your reasons for withdrawing any offer of employment. (Please seek HR advice).

11.7. Do I have a duty to inform others in the Council (or School) about an employee’s criminal record?

Information about an applicant’s criminal record should not be disclosed to anyone in the organisation apart from those who have a genuine need to know. This may include the Recruitment team, HR Business Partner, or the applicant’s team leader/ line manager, but only if the offence is relevant to the applicant’s role and only where the team leader/ line manager is responsible for implementing any safeguards deemed necessary and appropriate to manage any identified risks.

The applicant should also be told who in the organisation knows about their record, as they need to feel confident that their personal and sensitive information will not be disclosed to anyone unless there is a specific reason for doing so.

11.8. A member of my team’s DBS re-check has revealed details of cautions and/or convictions. What should I do?

Any re-checking has to be done with the employee’s full knowledge and consent. However, it is expected that staff working in safeguarding roles will provide that consent and may not be able to continue in their role if they do not provide consent and their registration requires a re-check to allow them to continue practicing.

If a re-check reveals a conviction or caution which has not been declared by the employee, you should not assume that this information has been withheld deliberately. Follow the guidance outlined in the previous paragraphs.

11.9. A member of my team has reported a change in their criminal record or other information of concern. What should I do?

You should follow the guidance provided in the previous paragraphs.

11.10. Some information has been brought to my attention about an employee or volunteer which may affect their suitability for the role. What should I do?

Firstly, you should consider the source of the information and whether it is likely to be reliable. For example, the member of staff concerned may have confided in a colleague, who has felt a professional responsibility to pass on the information to you as their line manager. A colleague may have pointed out to you the press coverage of a court case. Or you may have overheard some ‘gossip’ in the workplace or seen something written about the member of staff on social media such as an incident or an arrest. It is important to be mindful that mistaken identity could be needlessly casting doubt on a member of staff with no connection to the incident or court case in question. The reliability of the information, or the chance that the information may be unreliable, is likely to determine how you will approach the employee.

Remember that an employee only has to disclose information about their criminal record if they are asked to do so. You should not assume that there is a deliberate attempt to conceal information.

After consulting your HR Business Partner, you should arrange a meeting with the employee. You should make it clear to the individual that the purpose of the meeting is to give them the opportunity to respond to any concerns that have been brought to your attention. This may or may not result in you needing to undertake a risk assessment. Any relevant information gathered from the meeting can be used to inform the risk assessment.

Try to conduct any such meeting with sensitivity and empathy, as discussing a conviction, caution, arrest, or involvement in an incident that could result in them being charged with an offence may be a source of great anxiety and embarrassment for the person concerned.

Think carefully about the questions you plan to ask and keep the discussion focused on the individual and their feelings and attitudes about the situation or offence.

You should ask the individual if they need any support with their well-being. The following Intranet links are helpful:

Employee support
Stress mental health and emotional-wellbeing

Re-cap and agree with the individual any actions arising from the meeting, including informing them of whether you will need to undertake a risk assessment. It is best not to conduct the meeting alone. You should take notes and confirm the outcome of the meeting in writing. If you think that a risk assessment needs to be undertaken, this should be done quickly and in conjunction with your HR Business Partner.

---