The Protection of Children Act 1999 introduced CRB checks (now known as DBS checks) for all those who work or volunteer directly with vulnerable groups. Following the Bichard report into the tragic Soham case, the Safeguarding Vulnerable Groups Act 2006 came into force to prevent unsuitable people working with vulnerable groups.
Employing a barred person
Under the provisions of the Vetting and Barring Scheme it has been an offence since 2010:
- 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: if you yourself are barred from regulated activity, you must not work, or seek to work, in regulated activity from which you are barred.
So in practical terms, this means that anyone working directly and regularly with children and young people must be checked against the DBS (Disclosure and Barring Service) Children's Barred List which, for out of school clubs, can only be achieved by carrying out an enhanced DBS check. (See our article Who needs a DBS check? for more information.)
Failure to do so can result in a £5,000 fine and a prison sentence of up to 5 years, or both. A similar penalty exists for any individual applying for such work when they are barred.
Legal duty to refer
Employers also have a duty to refer:
- 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.
Conduct that should be referred to the DBS is any behaviour that:
- 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 key changes in the new Protection of Freedoms Act are:
- ISA registration has now been scrapped
- the CRB and ISA have been merged and are now known as the "Disclosure & Barring Service"
- the introduction of a new DBS Update Service to allow DBS checks to be portable between employments
- the DBS continues to bar but only for regulated activities
- barring does not apply to other activities
- it continues to be an offence for a barred person to apply for, or an employer to appoint, when barred
- introduction of basic checks for all posts except regulated activities (date to be announced)
- only the applicant now receives the DBS disclosure.
What should employers do?
Now the new Protection of Freedoms Bill is law, rigorous recruitment will be especially important due to the scaling back of DBS checks for all those who work directly with children. Enhanced checks are only available for those who lead on, or supervise, activities. There is no legal obligation to check support workers, however if they could be CRB checked previously, they can still be DBS checked. Employers need to be vigilant during the recruitment process to ensure they are confident they have appointed the safest person to work with children.
Applicant-only DBS certificates and the DBS Update service
The Disclosure and Barring Service (DBS) applicant-only Update Service went live on 17 June 2013. This means that:
- 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.
- The applicant will have the opportunity at the time of application to opt-in for the Update Service for £13 per year. The Update Service is fully portable, meaning applicants will no longer have to automatically make a new DBS application whenever they change job or organisation.
*Note: If you are obtaining your DBS certificate through Ofsted, you are now required to subscribe to the update service.
How this will affect organisations:
- All employers of staff and volunteers will need to consider how they will manage having sight of the certificate when it arrives. Offers of employment will now need to include a phrase similar to "subject to full sight of a satisfactory DBS certificate at the relevant level, within a reasonable timescale" to avoid delays.
- For small organisations who do not benefit from professional HR services, SAFE recommends that the applicant passes their certificate in a sealed envelope to their recruiting manager so any information can be fully risk assessed and the certificate returned to the applicant within a short timescale such as 48 hours. This means that external help can be sought in cases where there are concerns about the suitability of an application to work with vulnerable groups.
- Once an employee or volunteer has subscribed to the DBS Update Service, the recruiter will be able to keep track of them online; SAFE recommends this is done annually. The Update service will not show any confidential information, but it will inform the employer if there is a change in status, in which case, a new DBS application should be submitted for the individual in question.
For more information on any safeguarding matter, contact your local Safeguarding Children Board. A list of contact details for all local Safeguarding Children Boards can be found on the SAFE website. Alternatively you can contact SAFE on 01379 871091 or email email@example.com.