Yes you can, as long as you have made it clear that the offer of employment was “conditional” to them having a DBS check that you deem to be satisfactory. This really depends on how your offer of employment is made to your prospective employee, and one of the key reasons we suggest a formal offer letter is used when making an offer of employment.

However, you should only request information about an applicant’s criminal convictions if the information can be justified in terms of the role being offered.

If it is justified, you should make it clear that spent convictions do not have to be declared, unless the job being filled is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974.  You need to consider whether the offer of employment should contain any conditions, such as “your offer of employment is subject to us receiving a DBS check that is deemed to be satisfactory to us” and where an offer of employment is conditional, this must be made clear to the potential employee, for example in their offer letter or contract of employment.

Particular occupations may have specific requirements for a DBS check to be undertaken before employment can be commenced.  The Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) sets out a system which is intended to prevent barred individuals from working in “regulated activity” with children and from working with adults in certain situations.  In other situations, you may wish to ask job applicants about their criminal record.

Subject to certain exceptions, a person who has been convicted of a criminal offence but who does not re-offend during a specified period from the date of conviction (the rehabilitation period) is considered to be rehabilitated and their conviction becomes “spent”.  Then, unless one of the exceptions applies, they will be entitled to hold themselves out as having a clean record.  During the rehabilitation period, the conviction is “unspent” and should be disclosed in response to a request for details of the individual’s criminal record.

The excepted occupations, offices and professions are set out in DBS guidance and fall into five broad groups:

• Professions (such as medics, lawyers, accountants, vets, chemists and opticians)
• Those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens)
• Certain regulated occupations (such as financial services, those in charge of certain types of nursing homes, taxi drivers and firearms dealers)
• Those who work with children, provide care services to vulnerable adults or who provide health services. The operation of the SVGA 2006 is of particular relevance to this group of workers
• Those whose work means they could pose a risk to national security (such as air traffic controllers and certain Crown employees)

 Get in touch to see how we can help you. You can book your FREE 15 minute consultation with a member of the Meraki HR team here.