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Employee eligibility

19 April 2013

Under the Rehabilitation of Offenders Act 1974, a person with a criminal record is not required to disclose any spent convictions unless the position they are applying for, or are currently undertaking, is listed as an exception under the act.
 

Your Legal Responsibility

Before an organisation considers asking a person to make an application for a Disclosure and Barring Service (DBS) check, they are legally responsible for ensuring that they are entitled to ask that person to reveal their conviction history.
 
The information below includes the latest amendments introduced as a result of the Protection of Freedoms Act 2012 and describes occupations that are known as the exceptions to the Rehabilitation of Offenders Act 1974.
 
The Ministry of Justice has stated that organisations should not insist that a DBS check forms part of a recruitment exercise or bid when tendering for contracts, unless the services provided meet the criteria for an eligible DBS check as defined by the exceptions, as this would breach employment law.
 
Standard checks – To be eligible for a standard level DBS check the position must be included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975.
 
Enhanced checks – To be eligible for an enhanced level DBS check, the position must be included in both the ROA Exceptions Order and in Police Act Regulations.
 
Enhanced checks with children’s and/or adults’ barred list check(s) – To be eligible to request a check of the children’s or adults’ barred lists, the position must meet the new definition of regulated activity. There are a small number of other positions for which you can also request list checks.
 
Where to find further guidance DBS eligibility guidance, v1, December 2012 - 2 – If you are unsure about whether a position is eligible for a DBS check you should refer to any guidance provided for the job sector, consider obtaining legal advice on the requirements to obtain criminal records checks.
You can also contact the DBS for further advice via email at customerservices@dbs.gsi.gov.uk; please include the job specification and the roles and duties of the position.