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UK HR e-briefing: Criminal records certificates - what's changing?

    • Employment law - HR E-Brief

    17-06-2013

    Criminal records certificates – what’s changing?

    A number of recent developments in relation to the Disclosure and Barring Service (DBS) and criminal records checks will affect employers, in particular the new update service being launched on 17 June.

    New Update Service

    A new subscription service is being launched on 17 June. It is intended to make the vetting process of job applicants faster and more straightforward for employers. It will allow individuals, subject to them having subscribed to the update service for an annual fee of £13, to keep their DBS certificate up-to-date so they can take it with them when they move jobs or roles. There is no fee for volunteers.

    Employers will be able to carry out free, online, instant checks, known as status checks, to see if any new information has come to light since the certificate’s issue, provided the same type and level of check is required, the individual has subscribed to the update service and has consented to the employer’s check.

    Guidance for employers on the new service has been produced and is available here.

    Certificates to be issued to applicants

    To coincide with the launch of the update service, the DBS is making another change with the result that DBS certificates will only be issued to the individual applicant. This will provide applicants with the opportunity to review and challenge any of the certificate's content before it is released to a registered body.

    Employers will be able to apply for a copy of a certificate but only if certain conditions are met, including that the applicant is subscribed to the update service.

    Old and minor offences removed from criminal record certificates

    Since 29 May 2013,  the DBS has been removing certain specified old and minor offences from criminal record certificates. Applications for a criminal record check are being amended to bring them into line with these changes.

    The filtering rules and the list of offences that will never be filtered are also now available.

    But not the end of developments

    In R (T & others) v Chief Constable of Greater Manchester & others [2013] EWCA Civ 25, the Court of Appeal held that the criminal records disclosure regime (including the exceptions to the Rehabilitation of Offenders Act 1974) violated Article 8 ECHR.

    Permission has been granted for a further appeal to the Supreme Court which will hear the case on 24 and 25 July of this year. The appeal is much less relevant, however, following the decision to remove old and minor offences from checks.

    Comment

    The new update service has the potential to have some dramatic consequences. Employers who regularly perform criminal records checks  may seek to encourage workers, including volunteers, to subscribe to the update service and may even consider incentivising them by reimbursing or paying the annual subscription fee. They may also want to consider seeking ongoing consent from employees so that they do not have to seek consent on each occasion on which a status check is undertaken.

    For more information, please contact:

    Audrey Williams
    Partner

    Tel: 0845 497 4984
    Email: 
    audreywilliams@eversheds.com