NHS employers break law with illegal CRB checks

Employers in the NHS are breaking the law by making illegal background checks on all new staff, not just those who have access to patients, Personnel Today has learned.

For jobs in the NHS, Criminal Records Bureau (CRB) checks, or disclosures, are only supposed to be requested for posts that allow access to patients "in the course of normal duties", such as nurses, midwives and porters.

Staff who do not come into contact with patients, such as people working in administrative, technical, laundry or maintenance roles, should not be subject to such extensive checks.

But NHS Employers, the body responsible for workforce conditions in the NHS, admitted that illegal checks were taking place.

Gordon Fleck, senior business manager, said: "The message that we are getting from employers is that this is an issue we need to address. It is absolutely paramount to check staff thoroughly, but within the terms of current legislation."

By checking all staff, employers are breaking the Rehabilitation of Offenders Act, which allows certain types of criminal convictions to become 'spent' or ignored after a rehabilitation period. After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction when applying for a job.

Nacro, the charity for ex-offenders, said employers in the NHS "routinely abused" the disclosure service (see www.personneltoday.com/33507.article).

Employers also risk breaching the Data Protection Act, as criminal convictions are classed as "sensitive personal data", warned Adam Turner, senior associate at law firm Lovells.

An individual could argue that obtaining background information when they applied for a job was unjustified, and could complain to the Information Commissioner, he said. Subsequent investigations might then require NHS employers to strictly adhere to the Rehabilitation of Offenders Act.

The unnecessary checks also raise the issue of avoidable NHS spending. NHS trusts are facing an overall deficit of 620m this year, but health service employers pay 29 for a standard CRB disclosure and 34 for an enhanced disclosure.

NHS Employers is urging the Home Office and the Department of Health to change the law to allow checks on all new staff, Fleck said.

mike.berry@rbi.co.uk