Case study – Dennis – Challenging an ineligible check with an employer

Dennis contacted our helpline because his employer intended to carry out an enhanced Disclosure & Barring Service (DBS) check for his job. Dennis did believe his job was eligible for an enhanced check. Before the check was submitted, Dennis had disclosed details of his criminal record and was suspended by his employer.

Dennis as a driver for an out of hours doctor’s service. Dennis stated that his job involved driving doctors to their appointments and waiting whilst they attended to a patient. On occasion, it was necessary for him to act as a chaperone whilst the doctor carried out a procedure on the patient but this had only happened twice in the previous year.

On reading the job description, we agreed that his job would not be eligible for an enhanced DBS check. To be eligible, he would need to be performing chaperone duties once a week or more, or at least four days in a 30 day period. In any event, Dennis would be accompanied at all times by a medical professional who had been DBS checked and had overall responsibility for the patient. We provided Dennis with information and advice on challenging the check and offered to speak with his employer.

Three weeks later, Dennis contacted us to confirm that he had raised the question of eligibility with his employer. Although they had conducted a review of his case and lifted his suspension, they still wanted to proceed with the enhanced DBS check.

We advised Dennis to contact his Employment Relations Manager, outlining that:

  1. There was no legal basis for an enhanced DBS check to be conducted on his driver’s role; and
  2. If it were found that an enhanced DBS check was not necessary, then the employer could be holding information which they would not legally be entitled to hold and could have action taken against them under the Data Protection Act.

The Employment Relations Manager replied stating that following further investigation and advice from DBS they would no longer be carrying out the enhanced DBS check as a chaperone is:

At all times accompanied by a medical professional who has undertaken an enhanced disclosure check themselves”

The employer intended to revise their recruitment policy to reflect this.

Lessons

This case demonstrates how employers can sometimes wrongly believe higher level checks are required due to their client groups. Ineligible checks may result in an employer holding information that they are not legally entitled to hold.

Having an understanding of criminal record checks means that it’s possible to successfully challenge employers who may be looking to carry out ineligible checks. Any employer is permitted to carry out a basic criminal record check, but if your conviction is spent (as in Dennis’ case) you would not need to disclose it to an employer.

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Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

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