May 10th, 2017 | Sterling

Dos and Don’ts of Criminal Record Checks

According to the National Association for the Care and Resettlement of Offenders (NACRO), over 20% of the UK working age population has a criminal record. But just 58% of companies in the UK are currently running criminal background checks and 42% are not running these checks at all. This is a very eye-opening statistic, especially at the time when the risk of a bad hire can be so great.

Diligent background screening is the first line of defense against poor hiring decisions. Employee screening checks can range from basic criminal records check to a more thorough investigation including reference interviews, credit inquiries, employment verification, education and certification reviews and in cases involving driving vehicles, DVLA reports. However, it is important to find the balance in the need for a comprehensive background check. A background check should only investigate the aspects of the candidate’s past that are relevant to the position.

Background Check Process

Criminal background screening checks can be processed either individually or through a third party/umbrella company, such as Sterling. In the UK, there are three main authorities that provide disclosure information: Disclosure and Barring Service (DBS) in England and Wales, Disclosure Scotland (DS) in Scotland and Access NI in Northern Ireland. The process for procuring a criminal background check has three main components:

• Consent: The candidate provides consent and relevant information to conduct criminal record check.
• Apply: The criminal record check application is submitted to the relevant authority.
• Results: The authority running the screening then provides the results to the individual or third party who had requested them.

Three Types of Criminal Checks

There are three types of criminal background screening checks in the UK that are processed by the three main authorities listed above. Each authority might have different conditions for the checks, but the main ones are:

Basic: The basic check is the most commonly ordered disclosure report ordered. These records are available to individuals. There are no eligibility requirements to have this type of check run. These checks just look for unspent convictions.

Standard: The standard check is focused on more specified fields and industries such as NHS staff, legal and financial professions. Spent and unspent convictions, cautions, warnings and reprimands are covered under this report

Enhanced: Enhanced criminal checks are more detailed for those individuals who work with vulnerable adults and children. This report runs spent and unspent convictions, warnings and reprimands and other relevant police data.

Compliance Considerations

Compliance is the number one issue when it comes to criminal background screening checks. If a company is not compliant with the laws, they could be heavily fined. There are many compliance concerns that organisations need to think about during the hiring process. The top employer obligations during hiring are eligibility criteria, record retention periods and balanced decision making. All three play roles in hiring a new candidate based on the information from a background screening report. Companies who use criminal background screening as a part of their hiring programme must consider the rules defined under the Data Protection Act 1998 (soon to be the General Data Protection Regulation) and the Rehabilitation of Offenders Act 1974.

Sterling Criminal Record Check Webinar Questions and Answers

Sterling feels that it is important to be a source of information for the latest updates about human resources, candidate experience and background screening in the UK. We recently hosted a very informative webinar discussing the Dos and Don’ts of Criminal Record Checks. We received quite a few questions for our panel (Steven Smith, Kevin Price and Samantha Vaughan) from Sterling throughout the webinar. We compiled the top questions from the webinar below:

1. Once recruited, should you repeat these checks and how often should you do DBS checks?

The DBS check is accurate at the time of order. Each company should consider when it is appropriate to re-order the criminal record after a passage of time has expired. In some industries, such as financial services and healthcare, annual rescreening is deemed appropriate. It is important that companies have a requirement in the HR policies that employees declare any criminal investigations/proceedings to HR which arise during their employment. This may assist in determining appropriate timescale for any rescreening to support policies.

2. What would you consider a reasonable look back time period?

A reasonable look back time period would be at the minimum 12 months and the maximum at three years, but would be dependent on the role and potentially the industry sector in question.

3. Could you elaborate on the upcoming changes with DS/DBS that may affect how you conduct criminal checks?

Currently, Disclosure Scotland (DS) processes Basic Disclosure applications for Scotland, England and Wales. DS uses different filtering rules for Scotland applications compared to England and Wales applications. As of September 2017, Disclosure Scotland will be processing Basic Disclosure applications using only Scotland filtering rules. Therefore, as of September 2017, Basic Disclosure applications for candidates working in England and Wales must be ordered via the Disclosure and Barring Service (DBS) so that the correct filtering rules can be applied.

4. How long does a criminal record check take?

The Disclosure and Barring Service and Disclosure Scotland set out the average turnaround times as 14 days for a Basic Disclosure and up to eight weeks for Standard and Enhanced Disclosures. At the time of writing, Sterling is experiencing the following turnarounds times: seven days for a Basic and Standard Disclosure and nine days for an Enhanced Disclosure.

5. When using a screening provider, does the employer find out what the conviction is directly or do they have to ask the candidate to bring their certificate in to see the information?

Currently, for Disclosures ordered via Disclosure Scotland, we will be able to report conviction data in the screening report which we will report directly to the employer. As from 1^st September, Basic Disclosures ordered via the DBS will be reported the same way that Standard and Enhanced disclosures are reported today, i.e. the certificate will be sent to the candidate, and we will only receive an indicative notice that no information has been found or that information has been found and that the employer would need to see the certificate for the details. The DBS will also provide the candidate with a PIN for their Basic Disclosure certificates which they can share with their employer so that the employer can view the certificate online.

6. When employing foreign nationals, what checks are made on those people particularly enhanced checks?

A DBS check will only disclose criminal records, (spent and unspent,) relating to activity in the UK. The record does not generally include any criminality or intelligence from outside the UK. There have been a few times, (albeit very few) when a certificate included information from other countries in Europe.

7. We are a UK based company with a branch in India. We undertake DBS checks for an employee in the UK, but do we need to carry these out for our employees in India?

Whilst DBS checks disclose criminal records and information relating to an individual regarding any criminal history whilst in the UK; the service does not include any international criminal history or information. We would recommend that a criminal record disclosure is obtained from the home country of the employee and possibly any other countries that they have resided in for six months or more. We would also recommend that further screening is completed to ensure due diligence when deploying employees to work with children or vulnerable groups.

Create a Compliant Background Screening Policy

Implementing a good background screening policy for your company is vital to helping you make the right hiring decisions. The policy should outline the objectives, process and types of background checks for each position and how the results of the tests will affect hiring decisions. Having a background screening policy will allow a company to maintain transparency with their employees while helping to avoid inadvertent discrimination. Consult with your legal counsel to ensure your organisation is compliant with local regulatory guidelines. Choosing the right third party background screening company is important to getting the information that you need about your candidates in an accurate and efficient manner. To learn more about criminal background screening tests, you can listen to the OnDemand version of the webinar. Stay tuned for future webinars detailing the upcoming GDPR and more HR essentials.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.