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A complete guide to criminal record checks

August 15, 2016 by Guest contributor

A complete guide to criminal record checks{{}}DBS stands for the Disclosure and Barring Service; it was formed from the merger of the CRB (Criminal Records Bureau) and ISA (Independent Safeguarding Authority) on 1st December 2012, as a result of changes made to the Protection of Freedoms Act (2012).

The DBS conducts criminal record checks on potential employees on behalf of employers across England and Wales. Once employers have this information, it allows them to make informed and safe decisions regarding recruitment, especially important if the role involves working with children or vulnerable adults.

Who needs a DBS Check?

We would recommend that anyone who is in a position of trust undergoes a DBS Check. Criminal record checks are a public service and available to any employer in order to help to make suitable recruitment decisions. Anybody can have a criminal record check, the only rules are related to the level of check they qualify for.

What types of checks are available?

There are three types of criminal record checks: Basic, Standard and Enhanced. Each goes into its own level of detail, and each is more suited for certain industries than others.

Type of check

Basic Disclosure Check

Standard DBS Check

Enhanced DBS Check

Cost (discounted rates available for bulk orders)

£45.49

£55.49

£68.49

Who issues the check?

Disclosure Scotland
(to be taken over by Disclosure and Barring Service 1st January 2017)

Disclosure and Barring Service

Disclosure and Barring Service

Who applies?

Both organisations and individuals can apply.

Organisations only on behalf of the applicant.

Organisations only on behalf of the applicant.

What is disclosed?

Unspent criminal convictions.

Cautions, warnings, reprimands, spent and unspent convictions.

Cautions, warnings, reprimands, spent and unspent convictions.

Can also search 'barred lists'. Also includes local Police records

 

Basic Check

A Basic Check, also known as a Basic Disclosure, is the simplest check you can apply for. It is often conducted as part of the recruitment process. Individuals can apply for a Basic Check on themselves.

This type of check will reveal all criminal convictions that are considered to be unspent under the Rehabilitation of Offenders Act (1974).

An application form can be requested by the individual themselves or by the organisation they are applying to work for. Applicants will be required to provide copies of the following identification:

  • Proof of ID e.g. driving licence or passport
  • Proof of home address e.g. bank statement or utility bill

How long does it take to receive a Basic Check?

It takes between one and two weeks to process your application. Generally we find that Basic Checks are returned to us in one week if there are no queries.

If an individual applies independently, the certificate will be sent to the applicant's home address. However, if a company applies through our online system, the certificate can be posted to the employer.

Standard DBS Check

A Standard DBS Check is more in-depth and will show details of all spent and unspent convictions, cautions, warnings and reprimands on a person's criminal record.

An employer can only able to apply for this level of check if they are in certain sectors. These include: Financial services and accountancy, health and social care, legal, contractors on regulated sites (e.g. schools), education, dental practices and childcare. A list of positions where a Standard DBS Check may be required can be found here.

How do I apply for a Standard DBS Check?

For this level of check, employers must apply on behalf of the potential candidate; an individual cannot apply themselves. Once the employer has completed the application and it has been processed, the certificate will be mailed directly to the applicant. They may be required to present this to their employer.

Generally we find that Standard DBS Checks can be returned in as little as 24 hours if there are no queries, whereas some can take a week.

Enhanced DBS Check

An Enhanced DBS Check is the highest level of check available. It will search a person's criminal record for any spent and unspent convictions, warnings, cautions and reprimands. It can also search the Children and Vulnerable Adults Barred Lists. Local police forces also have the opportunity to add any relevant information they hold on the applicant.

The Enhanced DBS Check is recommended for anybody working in a position of trust with children or vulnerable groups. The Enhanced DBS Check allows the option to conduct a search of the Children's and Adult's Barred Lists, to check the applicant isn't barred from working with these groups. This is recommended if the applicant would be carrying out activities such as teaching, caring, training or supervising.

How do I apply for an Enhanced DBS Check?

As this is the highest level of check available, applicants are not able to apply themselves. Employers will submit the application for them, and the certificate will be sent directly to the applicant. The applicant will then be required to show it to their employer.

Although there is no guarantee of certificate turnaround times, we often find that Enhanced DBS Checks can be returned to us in as little as a day, if no queries are raised, with others taking a week.

Can I pass or fail a DBS Check?

There is no pass or fail system when applying for a DBS Check. The check will show any information on a person's criminal record.

A criminal record includes cautions, warnings, reprimands and convictions; but evidence of these does not mean you have "failed". It simply means that your new employer must take into account whether the offence is relevant to the role you are applying for.

Are DBS Checks required by law?

DBS Checks are not required by law. However, many organisations such as OFSTED and the CQC will state that employers must conduct DBS Checks on their staff. These policies have been put in place for their own best practice purposes in order to make suitable hiring decisions.

How long is a DBS Check valid for?

There is no official expiry date on a DBS Check. The information provided on the most recent DBS Check will be accurate from when the check was carried out.

There is no legal requirement stating that checks need to be renewed after a certain amount of time. It is the decision of the employer to decide whether they are satisfied with the DBS Checks you have or if they want to see an up-to-date one. However, many of our clients have a policy where they will renew their staff's DBS Checks once every three years.

Can DBS Checks carry over to different jobs?

There is no legal requirement that states a DBS Check can only be completed for a certain employer. Although the DBS doesn't endorse portability, it is up to the new employer whether they are happy with the one they have been presented with or whether they would prefer to conduct a new check. One factor they may want to consider is whether the level of the existing check is high enough for the new position.

The DBS now runs an Update Service via its website. Applicants can sign up to the Update Service for an annual fee of £13. If you were to move jobs and you already had a DBS Check to your name, rather than your employer applying for a new certificate, the new employer could log on to the Update Service and confirm if there have been any changes to your criminal record. For example, if a person has a clean certificate and the Update Service confirms that nothing has changed, then both the employer and employee know that the clean record still stands. However, if the Update Service states that something has changed, it would prompt the new employer to apply for a brand new check.

Can a DBS Check stop you from being hired?

If a DBS Check shows the applicant has a criminal record, the employer has to make a hiring decision on the relevance of the offence in relation to the role being applied for. They can do this by taking into consideration the nature of the offence, their age when it was committed and what type of record it has left.

The Rehabilitation of Offenders Act also states that after a certain amount of time, an employer cannot discriminate against someone because of their conviction. After that time has elapsed, an employer has to treat that person the way they would any other individual, regardless of their convictions.

However, if the applicant is found to have any offences against children or vulnerable adults, or is found to be on the Children's Barred List or Adult's Barred List, then it would be illegal for the employer to hire them and place them in a position where they are working with children or vulnerable adults.

Copyright © 2016 Personnel Checks

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What does the law say about leaving kids home alone?

August 02, 2016 by Guest contributor

What does the law say about leaving kids home alone?{{}}The six-week summer school holiday should stretch in front of our children like a blank canvas of carefree, sunny adventure. Many of us still hold an old-fashioned view of childhood summers with children playing happily outside as mum makes scones and lemonade at home. These days, the reality is somewhat different as more children than ever have two parents who work.

So what can you do with your children? And when is it OK to leave children in the house without adult supervision? The law does not give a minimum age for leaving children home alone, but leaves it up the discretion of parents.

Meanwhile, the media has covered all kinds of stories about parents leaving their kids – from the mother who went on holiday to Australia for six weeks leaving her children, ranging in age from three to 14, home alone to fend for themselves, to the man who left his two-year-old in a car for five minutes while he popped into a shop. Both cases were prosecuted.

However, the law is unclear at what age a child can be left and for how long. Laws in England and Wales say children must not be neglected or abandoned "in a manner likely to cause [them] unnecessary suffering or injury to health".

Common sense approach

It seems to me that parents will only get on the wrong side of the law if their child is hurt when they are home alone or if the authorities are alerted to a situation; and common sense will dictate whether a child is safe and for how long.

So what options are available to keep you and your children out of trouble? The cheapest option is to rely on extended family; grandparents being the most popular babysitters. Formal childcare is more expensive and costs vary widely across the country. But because of the costs, this kind of childcare is often out of reach of many families, especially where they have more than one child. It can also be in short supply anyway.

Other parents choose to care for their children in shifts, taking their annual leave consecutively; that's a great option for the children as they have the attention of one parent for the whole summer, but not so great for getting the whole family together.

As a teacher with two boys of 11 and 13, I am one of the lucky ones for whom childcare has never been an issue (although I don’t make scones and homemade lemonade as much as I should!). But even I need to shop and have cause to leave the house when my boys are happily playing in the garden or engrossed in a PS4 game.

Confusing guidelines

The NSPCC offers its own guidelines - babies, toddlers and young children should never be left alone for any amount of time; under-16s should not be left alone overnight. But the advice is still vague when it comes to what to do with children who fall between "young child" and 12 years of age; the guidelines simply say that they should not be left alone for "a long period of time".

Finally, for those willing or able to take the financial hit, the right to unpaid parental leave was extended last year to include all parents of children up to 18 years old, with each parent entitled to four weeks’ leave per year, per child, up to a maximum total of 18 weeks per child.

The truth is that most families rely on a range of childcare strategies over the six weeks’ holidays, to ensure the well-being of their children, while making it work for the family financially and allowing the whole family to enjoy a well-earned holiday.

Copyright © 2016 Lesley Butler

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Giving references - say it nicely or say nothing at all?

July 12, 2016 by Guest contributor

Giving references - say it nicely or say nothing at all?{{}}Were you ever told "if you can't say anything nice, then don't say anything at all"? Not a bad rule for a child looking to avoid trouble in the playground, but rather less helpful when it comes to the thorny problem of giving an employee a reference.

Your employee certainly isn't going to be happy if you give them a bad reference, especially if that means they end up missing out on the new job they were hoping to get. That could be just the encouragement they need to have another look at whether they can take you to an employment tribunal.

So how about "don't say anything at all"? A prospective employer doesn't have to be a genius to guess that your reluctance to give a reference might be covering up something you'd rather not put down in writing. So what will you say when they phone you asking why you didn't provide a reference?

Meanwhile, of course, your employee might well be justified in claiming that your refusal to give a reference is as bad as - or even worse than - just telling the truth.

Following the old childhood advice, you might look for something nice to say. That would make your employee happy. The problem is that it might well make his/her new employer very unhappy if they end up having to deal with a disastrous new hire that you deliberately decided not to warn them about.

So it should come as no surprise that employers increasingly restrict employment references to just a few basic facts, confirming job title and employment dates but refusing to say anything more. And they make a policy of doing this every time, regardless of whether an employee has been a dream or a nightmare.

It makes the employment reference next to useless, but it also minimises the risk of legal claims.

"If you can't say anything nice, have a policy of always saying the bare minimum and including appropriate disclaimers." It's not catchy, but it might be your best approach.

Chris Walker, specialist business writer, editor and content strategist

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A rough guide to employment law

June 21, 2016 by Liz Dawe

A rough guide to employment law{{}}Like many employees of a small business, I wear at least two hats; in my case content management and human resources. With my HR hat firmly in place I recently attended an Acas HR masterclass hoping to pick up a few tips.

It turned out that I wasn't alone in juggling more than one job, and I discovered that I knew more than I thought I did about people management and recruitment. So far, so good.

Then came the employment law bit.

At that point I braced myself to be the one who didn't know the answer to various situational posers. But you know what? Neither, it seems, did the employers, the employees, the lawyers, the courts or the employment tribunals in the case law examples we were given. Alongside the "it depends" responses to the "is this discriminatory?" type of question sat quite a lot of "the first judge said yes, the appeal judge said no".

Can you ban an employee from wearing a religious symbol at work? What if other people find it offensive? What, legally, constitutes "reasonable"? There are no clear answers but there are lots of legal opinions and a great deal of interest in the latest legal judgments setting precedent for the next appeal.

Of course, there are some obvious cases of discrimination, and it would take an extremely obdurate employer to advertise for only young, white, male employees. But it seems that recruitment, work requirements, office behaviour, dress codes, offensive language or freedom of individual expression are all open to quite a lot of interpretation.

If even employment law specialists and judges can't always agree, how on earth can a small business get it right?

My advice would be to gen up on the basics of employment law, have employment policies in place and make sure everyone is aware of them and sticks to them. And if in doubt, err on the side of caution.

It seems that even if one of your hats is actually a long horsehair wig, employment law is still something of a minefield.

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How do I set up a bare trust? It does what it says on the tin

June 20, 2016 by Fanny Marshall

How do I set up a bare trust? It does what it says on the tin{{}}First things first, a bare trust has nothing to do with bears. That was my first thought when I was Googling bare trusts after I discovered I, as executor, needed to set one up to fulfil the wishes set out in my Dad's will. How do you even spell 'bare trust'? (I guess I could have checked the will!)

If you are in the position of having to set up a trust, it's easy to imagine weighty rolls of parchment and a hoary old solicitor sitting at a desk, quill in hand. In fact, as I discovered, setting up a bare trust is almost ridiculously simple. So simple, in fact, that after a brief consultation with a solicitor, I was told that they very rarely do them any more - she was surprised to even be asked about it.

In reality bare trusts really are, well… bare. There is very little to them - technically you don't even need anything written on paper, although it is advisable to make a dated note of any actions you take in your role of executor. In my Dad's will, he stated that he wanted to leave set sums of money to each of his grandchildren, to be kept in a bare trust until they reached the age of 18.

What this meant I had to do, once probate was granted and all the assets had been gathered together, was open a bank account (in the grandchild's name) for the trust and deposit the stated amount, to be left there until the child reaches the age of 18 at which point they are free to inherit. I could write a document saying that was what I had done and date and sign it, but that's not essential.

In this situation the two most important documents are the deceased's will and the grant of probate. The will states that the trusts are to be set up, the amount to be placed in trust and the name, date of birth and address of the beneficiary and the grant of probate places the legal responsibility to enact the will on the executor.

In my situation the bare trusts I was setting up were for the benefit of my children and therefore both myself and the other executor of the will know about them. If you were setting up a trust for someone unrelated to you it would, of course, be advisable to write a letter to the parents/guardians of the child with details of the trust, together with a copy of the will and the grant of probate. But, as I discovered, far from being a complicated and costly legal process, setting up the bare trust was one of the most straightforward tasks I had to do as an executor.

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What does the high heels row mean for your business?

June 07, 2016 by Guest contributor

What does the high heels row mean for your business?{{}}The media storm over the agency worker who was sent home for refusing to wear high heels has highlighted issues with the current discrimination laws.

Nicola Thorp, a 27 year-old receptionist, hit the news headlines recently when she was sent home from work for refusing to wear high heels. But is this legal?

Thorp was employed by PricewaterhouseCoopers' outsourced reception firm Portico. Upon arriving at work, wearing smart flat shoes, her supervisor informed her that she would need to go and buy heels that were between two and four inches high or else she would be sent home without pay. When she refused, Portico sent her home.

Thorp had signed up to Portico's appearance guidelines before accepting the role but employers need to be mindful that workers can bring cases if the dress code falls foul of sexual discrimination legislation.

Portico has since changed its uniform guidelines with immediate effect. The new dress code policy for the company allows all women to "wear plain flat shoes or plain court shoes as they prefer". However, this does not change the fact that the law in relation to dress codes, as it currently stands, is open to question and potential abuse by employers.

Thorp has set up a petition asking the Government to make it illegal for a company to require women to wear high heels at work. It has attracted more than 141,000 signatures. As a result, Parliament will consider this for debate.

What is the current legal position?

The Employment Appeals Tribunal (EAT) has made it clear that dress codes are lawful, provided they are not discriminatory.

In Thorp's case, the issue is that it is still legal for a company to require female members of staff to wear high heels at work against their will. In addition, employers can also send staff home if they fail to live up to "reasonable dress code" requirements, as long as they have been given enough time to buy the right shoes and clothes.

It can be argued therefore that dress code laws as currently drafted are potentially sexist and may therefore need to be changed so that women have the option to wear flat formal shoes at work, if they so wish. Wearing flat shoes at work would enable a woman to carry out her job more efficiently, particularly, as in Thorp's case, if a nine-hour shift is expected, requiring her to be on her feet all day.

Gender equality

Gender-specific dress codes are lawful in the UK, as long as they do not treat one or other of the sexes less favourably and there is an "equivalent level of smartness".

If it can be established that members of one sex are being treated less favourably than members of the opposite sex, the "but for" test comes into play (Smith v Safeway). But for the fact that Ms Thorp was a woman, would she have been required to wear high heels?

The Tribunal said no to a similar question posed in the case of Safeway. The case concerned a male staff member who was required to wear a collar and tie. The EAT found that the Tribunal's decision was flawed and that the Tribunal had misapplied the "but for" test. The test only becomes relevant once it has been established that members of one sex have been treated less favourably than members of the other sex. In the case of Safeway, the Tribunal had only asked itself whether “but for the fact that T was a man, would he have been required to wear a collar and tie?”. The first limb of the test had not been satisfied.

Advice to employers

The correct approach is to consider whether the level of smartness required could only be achieved for women by requiring them to wear high heels. If it could be achieved by other means then the lack of flexibility shown in the approach taken towards women may suggest less favourable treatment. Whilst dress codes are lawful, employers with similar dress codes therefore may wish to consider whether the requirement for women to wear high heels is actually necessary to achieve the level of smartness required.

Provided that you, as the employer, adopt an even-handed approach, the fact that members of one sex are required to wear clothing of a particular kind, but members of the other are not, will not necessarily mean that members of one sex are treated less favourably than members of the other. It will depend on the overall context of the relevant dress code.

Acas guidance

Acas provides assistance to both employers and employees. The key points made by Acas are:

  • employers must avoid unlawful discrimination in any dress code policy;
  • employers may have health and safety reasons for having certain standards;
  • dress codes must apply to both men and women equally, although they may have different requirements;
  • reasonable adjustments must be made for disabled people when dress codes are in place.

Companies have a large measure of discretion in controlling their company's image, including the appearance of staff, especially those who have contact with customers. Now's the time to review your dress code policy and ensure that it does not fall foul of discrimination or other employment laws.

Copyright © 2016 Jennifer Spain, iLaw.

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