Making it contractual to regularly check staff for criminal records is one way of ensuring employees do not slip through the net.
For many employers, employee vetting is essential and is usually done before an offer of employment is made. What many employers do not consider, however, is the possibility of carrying out checks on a rolling basis to ensure that existing employees who fail to volunteer information about any subsequent offences, charges or cautions, do not slip through the net.
One organisation that must be vigilant about those it recruits and employs is Brook, an organisation with 17 UK centres that offer free and confidential sexual health advice and contraception to young people up to the age of 25.
The Brook Centre in Birmingham sees approximately 35,000 young people a year, about 11,000 of whom are under 16. As such, staff have access to, and are working with, some of society’s most vulnerable citizens.
Brook was keen to ensure that it took the ultimate precautions to protect its service users, and is one in the latest line of charities to adopt a new type of employment policy designed to help reduce security risks. Under its newly-revised and amended employment contracts, Brook now has a contractual right to continue to vet staff in respect of criminal records not only at the recruitment stage but throughout the term of employees’ employment.
By signing the contract, the employee consents to such checks, and any unreasonable refusal will be subject to disciplinary action. Brook ensures that checks are carried out either uniformly or on a sufficiently random basis to avoid any potential allegations that employees are being singled out or any claims of discrimination.
All criminal records checks are carried out by the Criminal Records Bureau (CRB), an executive agency of the Home Office, which collates information from the police and government agencies. The CRB was set up specifically to help organisations make safer recruitment decisions, and carries out criminal record checks on an employer’s request (see box).
Brook’s experience to date in respect of its criminal record checking clause and policy has been positive. The new clause in the contract of employment was met with unanimous approval from the staff during the consultation process, despite the fact that previously, any clause that allowed an automatic referral to the disciplinary procedure was generally contentious.
Chief executive Penny Barber says: “Brook staff fully understood that because action was required from the member of staff to carry out the check, recourse to the disciplinary procedure was necessary to deal with deliberate prevarication or refusal to co-operate.”
Brook follows CRB guidance in respect of data protection. The organisation does not retain the record of the employee’s check, but simply records the fact that the check has been made.
If an employee’s employment was terminated or a job offer was refused on the basis of a check, Brook retains the record for approximately three months, and the organisation is aware of the need to ensure that only the person or people who are authorised to see the disclosure open the mail and deal with any relevant correspondence.
Brook continues to review all of its employment policies and procedures.
Shaista Anjam is assistant solicitor at Shakespeares, Birmingham
The Criminal Records Bureau
For employers working with vulnerable people, such as Brook, the Criminal Records Bureau (CRB) is supposed to provide three levels of checking: basic, standard and enhanced disclosure.
However, only standard and enhanced levels of disclosure are available with appropriate posts exempted from the provisions of the Rehabilitation of Offenders Act 1974 and contain details of all convictions on the Police National Computer. The standard disclosure will reveal details of all spent and current convictions and of any cautions, reprimands or warnings held nationally by the police.
The enhanced disclosure is appropriate for more sensitive posts, which involve sole charge of vulnerable people, which, for example, may involve regularly caring for, training, supervising or being in charge of such people. This may also contain information held locally by the police.
Employers requiring these checks will need to be registered with the CRB and comply with the CRB code. Standard and enhanced disclosures must be kept confidential and used fairly by the employer. This would include employers having a written policy on storage of disclosed information and a written policy on the recruitment of ex-offenders.
Employers will need to pay attention to data protection and human rights issues as well as maintaining the confidentiality of any checks. Criminal records checks are classified as sensitive personal data and must therefore be obtained and stored with the employee’s express consent and retained in a confidential filing system.
Employers must ensure that there is a genuine need for a criminal record check and that it is not an unnecessary invasion into the employee’s private life. The Human Rights Act provides legitimate reasons for interference of privacy. For employers, public safety and prevention of disorder or crime may qualify as genuine reasons for making a criminal record checking procedure a condition of employment.
Criminal Records Bureau:
CRB information line:
0870 909 0811
The Disclosure Service:
Questions to consider
Employers and HR personnel carrying out criminal records checks should keep the following practical issues in mind:
1 What type of organisation are you? Are your employees exempted from the Rehabilitation of Offenders Act 1974, in respect of disclosure of spent convictions?
Do your employees work with children or vulnerable people?
2 Are you registered with the Criminal Record Board (CRB)?
If not, are you part of an umbrella body, which has registered with the CRB and which can countersign any applications to the CRB on your behalf?
3 What type of disclosure do you require, standard or enhanced?
4 Who is responsible for making and handling the results of any application?
You should ensure that only authorised staff who are aware of your confidentiality policies open the results of criminal record checks. They must ensure that this information remains confidential and is delivered to the appropriate place.
Brook has an appointed authorised signatory for all applications and it is this person that all disclosures are sent to once received.
5 What information should be retained?
If possible, adopt a policy in line with Brook’s and simply retain details of whether or not a check has been carried out as opposed to details of previous offences and so on.
Brook retains the original disclosure for a short period of time, for example three months, upon expiry of which the documents are shredded.
6 Where is the information to be stored?
Under CRB guidance, the information must be kept confidential and employers should ensure that their Data Protection Policies adequately cover the storage and retention of criminal records. If you are retaining the actual results of the CRB disclosure, consider whether or not these records are to be stored separately from the individual personnel file and kept secure (for example, in a locked filing cabinet). Ensure that access to this information is to authorised personnel only.
Brook retains all personnel records in a locked filing cabinet, accessible only by authorised personnel, such as the authorised signatory and chief personnel officer.
7 Which staff should have access to this information?
Key employees who will be involved in the recruitment and selection process and will carry out any pre-employment vetting should have an understanding of their roles and responsibilities and should understand the types of CRB disclosures, handling confidential information, assessing risk, identifying safeguards and making balanced objective judgements.
Brook ensures that staff involved in the criminal record checking procedure attend training courses on relevant law, policy and procedure.
8 Assessing and considering the relevance of criminal records.
Employers should consider the nature of the conviction and its relevance to the job in question.
Identify the risks to the organisation’s business, customers, clients and employees.
Ensure confidentiality and discretion when requesting and handling criminal records.
Carry out a suitable risk assessment involving the nature of the job and the offence, the length of time since the offence, the circumstances leading up to the offence etc.
Brook ensures that all decisions in respect of employment are made by the authorised signatory, who will undertake a risk assessment in the event that criminal records appear on the disclosure. It is sensible to keep a note of the reasoning behind the decision, showing that some sort of risk analysis has been conducted.
9 What about existing employees? Brook aims to carry out checks at defined intervals – eg every three years – and the checks will be carried out uniformly against all staff.
10 How are staff notified of these rolling checks?
As employee consent is required on each occasion, Brook provides each employee with a standard form, seeking consent and explaining the purpose and procedure for the checks. These forms need to be completed and returned. A failure to agree will be a breach of a contractual term and subject to disciplinary action.