Q: I understand that DBS checks might soon be deemed unlawful. What is the background relating to this and what could this ultimately mean for my business?
A: There was a High Court ruling made at the end of January – R (P and A) v Secretary of State for Justice – which suggested that DBS checks are unlawful.
The case in question focused on two people with more than one prior conviction. Under the current rules of DBS, anyone with more than one offence will have them disclosed indefinitely. If a person has one offence it would normally not be disclosed after a period of 11 years has elapsed.
Both of the claimants in the case had two prior convictions each, all for very minor offences and, most importantly, from well over 11 years ago. As a result, these offences showed up on every DBS check they had due to the current rules.
The judge in this case concluded that the indefinite disclosure of minor offences, such as the ones in this case, was arbitrary. He also said that there should be measures in place to test whether the disclosure of offences is proportionate to ensure that the DBS scheme remains in accordance with the law. In effect, he has questioned the legality of the current system and whether it is justifiable or necessary.
Although the judgment indicates that there are concerns with the system at present, the impact of the decision on DBS checks as they stand is none. DBS will continue in the same way for now and the checks remain lawful.
However, the High Court has asked for the Government to comment on the findings of the judicial review to explain what they intend to do before they make any final order on the issues at hand, and this could take some time.
It does seem that there will be changes to DBS moving forward, although when that would be is not clear at this stage. However, it is highly unlikely that the system would be scrapped altogether.
A more reasonable outcome would be changes to the system to either tighten up the rules on indefinite disclosure, or to limit the offences that would show on a DBS check indefinitely. It is therefore vital that employers are mindful of the review and any subsequent changes to the law that may be made over the coming months.
By Peter Mooney, head of consultancy at ELAS Business Support
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