DBS check; do you know who you are employing?
DENTAL BULLETIN, ISSUE 28
A DBS check, formerly a CRB check, is a check carried out on an individual before they take up new employment. It provides certain information about that person in relation to their criminal record and whether they are on either the adult or child barring list, which means they are barred from working with these groups.
However, a DBS check is not a routine check an employer can make on any of its job applicants. It is only if one of the exceptions applies that an employer can make a request for such information. There are also different levels of checks depending on the nature of the role.
Dentistry is one of the exceptions in which a DBS check can be obtained.
Who?
The first thing you need to consider is which members of staff do you need to undertake checks on.
– Dentists and Dental Care Professionals
You need to undertake an enhanced DBS check with barred list check on all dentists and dental care professionals.
– Receptionist
This will depend on the type of practice you run and the duties of your receptionist as to which check you need to carry out. The more contact that they have with patients on their own, the more likely they are to require a check.
– Office staff
The CQC states that there is no requirement on non-clinical staff to have DBS checks. However, we would recommend seeking voluntary disclosure.
– Practice managers
Given the nature of the role and their responsibilities we would recommend carrying out a standard DBS check, unless they will be in contact with vulnerable adults and children, then the enhanced check with barred list check should be carried out.
4 Types of DBS Checks
The types of checks that can be undertaken are:
1. Voluntary disclosure
This is where you ask the job applicant to provide information about their criminal record voluntarily. However, there are limits on what you can ask for and what information you can use.
2. Basic DBS check
This contains information in relation to a person’s unspent criminal convictions, conditional and unconditional cautions or that there are none.
3. Standard DBS check
This contains information about a person’s spent and unspent convictions and cautions, as well as police warnings and reprimands.
4. Enhanced DBS check
This will contain information about a person’s spent and unspent convictions and cautions, police warnings and reprimands, and relevant police information. If the enhanced DBS check includes a barring list check then information as to whether the person is unsuitable to work with children or vulnerable adults will also be provided.
How?
The basic DBS check can be obtained by the individual themselves, without the need to be countersigned by the employer. However, the standard or enhanced DBS checks require the individual to make an application, which is countersigned by a registered person confirming their entitlement to apply for the certificate.
There is now also an online service that individuals can register with and keep their checks up to date, so if they move between similar jobs, employers can access this information more easily.
When?
All DBS checks should be carried out on staff once an offer of employment has been made. If the staff member is working with children or vulnerable adults, this will need to be done before they start that role.
If the dentist is on the NHS performers list you can write to the NHS to seek their confirmation that the dentist has passed the relevant DBS checks, to avoid having to go through the application process. If you do this you must ensure that you can evidence that you have satisfied yourself the dentist is fit to work.
What are the consequences of getting it wrong?
Given that it is a CQC requirement to ensure that staff are suitably qualified, a failure to do so could result in you failing an inspection.
What weight you attach to the contents of a DBS check or voluntary disclosure will clearly depend on the role being offered, whether the convictions are spent or unspent and whether the applicant is on either barring list.
Refusing to employ a job applicant because they have a spent conviction, unless there is a legal obligation placed on you not to employ, is not allowed. However, the reality is that there is little a job applicant can do in these circumstances as there are no penalties for a breach of this legislation.
If you later find out someone has lied about their criminal convictions, then this is likely to be seen as an act of gross misconduct and you should take the necessary action. You should also consider if you have a duty to report the person to the GDC.
However, if you find out that an applicant did not disclose a spent conviction, unless you would not have been allowed to employ them at all as a result of this, you cannot dismiss them for not disclosing this information. Whilst this has not been tested in the tribunals, given the wording of the legislation this is likely to be seen as an automatically unfair reason for dismissal.
Practical Tips
– Offer letters. When you offer an applicant a position you should state in the letter that the offer is subject to references and the relevant DBS checks.
– Contract of employment. Make sure your contract places a positive duty on employees and associates to notify you should their circumstances change.
– New circumstances. If during the course of employment, an employee is cautioned or convicted of an offence, do not have a knee-jerk reaction to this. You need to weigh up the position held, the nature of the offence and your own policies. Again you will need to consider if you need to report this to the GDC.
If you would like to discuss any part of this article or need any assistance with safeguarding issues, please contact Laura Pearce on 0207 388 1658 or at lpearce@jfhlaw.co.uk.
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Laura Pearce, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
