Legal background
In 1999, the government introduced mandatory criminal record checks on all workers with children. The aim was to prevent paedophiles from gaining access to children. The Protection of Children Act 1999 introduced CRB checks, short for criminal records bureau, which have now become DBS checks for all those who work or volunteer directly with not just children but any vulnerable group. After the terrible murders of two 10 year old girls by Ian Huntly, the government introduced the Safeguarding Vulnerable Groups Act 2006 to make sure that even those associated with those who caused children harm, such as Huntley’s girlfriend, could not work with any vulnerable group.
Employing a barred person
After several high profile, horrific cases of child abuse such as the Victoria Climbie and the baby P scandal, the laws regarding child protection have become extremely strict. Since 2010, under the Vetting and Barring Scheme it is an offence :
- for employers: to knowingly employ a barred person in a regulated activity (such as an out of school club), or to use them as a volunteer;
- for employees: to work, or seek to work, in regulated activity from which you are barred.
In a nutshell, anyone working directly with children and young people must be checked against the Disclosure and Barring Service. Even regular volunteers must be subjected to a DBS check. Anyone who has not had a DBS check may not be left alone with children in a regulated setting, without the presence of a DBS vetted member of staff or volunteer. Failure to follow these laws results in a £5,000 fine and up to 5 years imprisonment or potentially both. Child protection is taken extremely seriously under British law. There are severe penalties in place for barred persons who apply for a restricted job.
Legal duty to refer
Employers also have a duty to refer. There have been several unfortunate cases of abuse continuing unchecked because employees and involved agencies did not refer the person to the DBS and simply fired them.
- It is an offence for employers to dismiss or cease using a person in a regulated activity because it is thought they have harmed or will pose a risk of harm to children or vulnerable adults without referring the case to the DBS.
What sort of behaviour or conduct must be reported to the DBS? Any activity or behaviour which:
- endangers, or is likely to endanger, a child or vulnerable adult
- if repeated against a child or vulnerable adult, would endanger them or would be likely to endanger them
- involves sexual material relating to children (including possession of such material)
- involves sexually explicit images depicting violence against human beings (including possession of such images), if it appears to the DBS that the conduct is inappropriate
- is of a sexual nature involving a child or vulnerable adult, if it appears to the DBS that the conduct is inappropriate.
Protection of Freedoms Act 2012
The protection of freedoms act in 2012 made changes to the length of time that information can be kept, this means that after a certain time period, certain information is no longer disclosed and will not affect employability. The key changes in the new Protection of Freedoms Act are:
- the CRB and ISA have been merged and are now known as the “Disclosure & Barring Service” In a nutshell both the criminal records and child abuse records have been combined so an individual can be checked for all information relating both to adult and child abuse.
- Employees can transfer a DBS from one employment to another, eliminating the need for several DBS checks on the same person.
- the DBS continues to bar but only for regulated activities
- barring does not apply to other activities
- introduction of basic checks for all posts except regulated activities
- only the applicant now receives the DBS disclosure.
What should employers do?
There is a legal obligation on employers to make sure a DBS check was performed on all workers in regulated activities who work regularly with children. Employers must be careful to ensure that they appoint the safest workers for children or vulnerable adults.
Applicant-only DBS certificates and the DBS Update service
In 2013, the DBS check became incumbent upon the employee, which means that they need to apply for their own DBS and present it to employers, shifting the responsibility. It also means that for as long as the DBS is valid (generally 3 years although technically there is no end date) the employee can present the same DBS to all employers.
Only one DBS certificate will be issued per application. This certificate will be sent to the applicant’s current address as they provided on their application form.
All employers should make sure their employers are obliged to present them with their DBS check in a reasonable amount of time.
