FTQ’s – CRB Checks

References
Criminal Records and Bureau (CRB)
Disclosure and Barring Services (DBS)
Schools and Education Facilities (Specified Establishments)
Restricted Activities (basis for enhanced / barred list disclosure) 

Child Protection
If in doubt, the child wins out 

Questions
Are Schools / education facilities entitled to view DBS certificates?
Are Schools / education facilities entitled to ask to view DBS certificates?
Are Schools / education facilities able to insist on voluntary DBS certificate disclosure as part of the Tender process?
What level of DBS checks are necessary for working in a school / education facility? 

Research
A limited amount of research involving;

  • DBS eligibility guidance
  • Vulnerable persons act 2006
  • Data Protection Act
  • A number of local government guidance documents
  • CRB website content
  • JCT Minor Works contract 2016 document

has been undertaken in arriving at the below interim findings.

Findings

  • An employer may ask an employee or potential employee to undertake a DBS check if the type of work entitles the employee to request a DBS check
  • The level of the DBS check (standard, enhanced, barred list check) is dependent upon the type of work to be undertaken and must be risk assessed by the Employer before the level of DBS check is requested
  • An employee is under no obligation to agree to the check nor to divulge the results of the DBS check to the requesting employer
  • The Employer is entitled to make employment / works deployment decisions based on the content of the DBS check
  • A Client (including schools) is not entitled to view the DBS certificate
  • A Client (including schools) is entitled to insist that DBS checks are undertaken if restricted activities are undertaken in Specified Establishments, but are not entitled to view the DBS certificate
  • In discharging their due diligence in terms of child protection, it would be a reasonable condition to require the Principal Contractor to declare in writing that all deployed operatives have been DBS checked and that they do not pose a significant risk, based on the results of the DBS check (they do not have to be “clean”) and the potential risks posed to the children when undertaking the works on the school’s premises.
  • The CRB state on their website that contractors working in schools need a DBS check (level not stated as activities determine this aspect) if they work one or more times a week or 4 (or more) times a month at the school
  • Whether the Client may ask for voluntary sight of the DBS certificate may be permissible as individuals are obviously free to share personal information as they see fit
  • A mandatory condition in the Tender document for voluntary disclosure of the DBS certificate may be in conflict with the “compliance with Statute” condition in the JCT Minor Works Building contract condition and the Data Protection Act 1998, whereby it is a legal right for the individual not to disclose this information and may therefore place some tendering companies at a disadvantage by not breaking the law
  • The Vulnerable Persons Act 2006 makes it a criminal offense for anyone on the barred list to undertake related works activities as defined by Restricted Activities
  • Child abuse definition in law extends to exposing children to unsuitable images and behaviours so physical contact (or the ability to have such contact) is not necessary for harm to occur. Therefore physical segregation is not sufficient to absolutely ensure child protection unless line of sight / noise transmission / ability to throw objects is also excluded. Therefore there is a need to ensure that behaviour is assessed as well as providing physical boundaries.
  • Schools are under a high level of due diligence to ensure that their Pupils are protected from harm.
  • Under adverse contract conditions (lateness / overspend etc.) Principal Contractors may be tempted to deploy contractors who have not been CRB checked. Given that this is a foreseeable risk combined with their high level of duty of care, then it could be argued that sight of the DBS certificate is required by the School

The Problem
Only employers are entitled to ask for DBS certificates for persons working for them.

The employer must then undertake a risk assessment based on the contents of the DBS certificate (if the employee agrees to share this information) as to whether or not persons may be deployed on certain activities.

It is assumed that anyone not agreeing to a DBS check / refusing to divulge the results to the employer would automatically be barred from working with children / having the potential to come into contact with children.

It is assumed that all employers are not only aware of their duties in this area but that they also diligently execute these duties in all cases, at all times and in all relevant situations.

Schools (unless competing care protection laws can be invoked) are not entitled to view DBS certificates and are therefore wholly reliant upon the employer to have correctly and diligently discharged their duties.

Questions and Answers

  • Are Schools / education facilities entitled to view personal DBS certificates?
    • No (unless competing protection laws can be invoked)
  • Are Schools / education facilities entitled to ask to view DBS certificates?
    • Yes, but on a strictly voluntary basis by the person in question
  • Are Schools / education facilities able to insist on voluntary DBS certificate disclosure as part of the Tender process?
    • No one has the right to view a DBS certificate other than the person being checked
    • This condition may breach Data Protection law and JCT Minor Works contracts
  • What level of DBS checks are necessary for working in a school / education facility?
    • Depends on the works activity / assessed risk to children
  • Can a School insist on the Principal Contractor giving a written assurance that their workforce is suitably DBS checked for the intended project activities / risks involved?
    • Yes – any reasonable condition can be written in a contract. Both parties need to agree
  • Can a School insist that all persons working on school related projects are suitably DBS checked?
    • Yes – absolutely. Again any reasonable condition may be written in a contract.
  • Can a School say to a principal contractor “if any of your employees refuses to undertake a DBS check or refuses to divulge the content of the DBS check to you, then they are not allowed to work on any of our projects”?
    • Yes – see above

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Child Protection
If in doubt, the child wins out
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