Employer obligations and fair treatment

As an employer, you may need to check the criminal records of potential employees or volunteers during recruitment. There are different levels of criminal record check and it will depend on the job or role as to which one is required. It is your responsibility to treat any sensitive information confidentially and to treat applicants fairly.

Before asking a job applicant for an AccessNI check

If a job or volunteering role requires a criminal record check, an employer should:

  • confirm if the applicant has the right to work in Northern Ireland
  • tell applicants why an AccessNI check is required, which check is required and how to apply for that check
  • for positions in regulated activity, tell applicants that a check for the Data Barring Service (DBS) barring lists will be required and get the applicants consent to proceed with the check
  • tell applicants how to get independent advice about the AccessNI application process (NIACRO can explain convictions on a disclosure certificate)
  • give each applicant a chance to explain if a check will reveal a criminal record
  • tell applicants when an AccessNI check is no longer required and their application will not be progressed
  • think carefully about the best point in the recruitment process to carry out an AccessNI check
  • only check the successful job applicant

When a basic check is required

An employer can ask all job applicants to obtain a basic check during the recruitment process. If a job requires AccessNI clearance to apply, you will need to arrange and pay for the basic check.

When a standard check is required

The standard check is available for certain specified occupations, licences and entry into certain specified professions. These include:

  • barrister
  • solicitor
  • veterinary surgeon
  • actuary
  • accountant
  • pharmaceutical chemist
  • security guard

When an enhanced check is required

An individual is eligible for an enhanced check when working in regulated activity or undertaking some other specific roles.  In many cases this may be a legal requirement or a condition of employment.  The role will almost always involve working closely with children and or vulnerable adults.

An enhanced check for a regulated activity will include a check with the Disclosure and Barring Service (DBS), which keeps lists of people who are unsuitable for work with children and vulnerable adults.

The enhanced check is also available for other specific positions (but without a check of the DBS barred lists), including those working with vulnerable people (but not in regulated activity) or judicial appointments.

Regulated activity with children

This is a position which invariably requires working frequently (once a week or more) or intensively (any period of four days in a row, or overnight) unsupervised with children. For example you work in regulated activity if you:

  • teach, train, instruct, care for or supervise children
  • provide advice/guidance on well-being to children
  • drive a vehicle only for children
  • work in a school, children’s home or childcare premises with the opportunity for contact with children
  • provide personal care, for example washing, dressing or healthcare to children
  • are a registered childminder
  • are a foster-carer

Regulated activity with adults

Regulated activity with adults refers to treatment or care for an adult which makes them vulnerable at that time, for example you are considered vulnerable when you are receiving dental treatment.

You work in regulated activity with adults when you:

  • give healthcare as a GP, pharmacist, nurse, dentist, surgeon or specialist
  • give personal care such as dressing or washing
  • provide social work
  • help with general household matters such as handling cash, shopping or paying bills
  • help manage personal affairs such as legal papers
  • convey an adult in a vehicle to receive personal care, healthcare or social care

An employer must:

  • know if a position is regulated activity
  • know the level of check required and when to search the barred lists
  • not employ an individual or engage a volunteer in regulated activity who is on a barred list
  • tell the DBS if the individual poses, or could pose, a risk to children or vulnerable adults

Examples of roles requiring AccessNI checks

Nature of work Legal obligation Check

Working beyond the passenger security check in an airport (for example, as an airport employee, in a shop or on the runways)

Department for Transport Regulations basic
Working in a care or residential home with adults Dept of Health standards enhanced
Working in domiciliary care with adults Dept of Health standards enhanced
Working in a day care setting with children and childminding Dept of Health standards enhanced
Taxi driving licence Road Traffic (NI) Order 1981 enhanced, without a barred list check
Fostering children Childrens Act 1989 or Childrens(NI) Order 1987 enhanced
Adoption of children Adoption (NI) Order 1987 enhanced

For some jobs, employers require an AccessNI check in the terms and conditions of employment.

Nature of work Type of check
Posts in the Northern Ireland Civil Service and certain other public bodies basic
Working within the security guarding industry standard*

*The Security Industry Authority sponsors this.

Protecting sensitive information

When an employer receives an AccessNI certificate disclosing a job applicant’s criminal record, the employer is responsible for protecting this sensitive information.

Registered bodies must comply with AccessNI’s code of practice and handle disclosure information safely and securely.

AccessNI checks and job offers

If a disclosure certificate shows results that make an applicant unsuitable for the post, an employer can withdraw a job offer. An employment contract exists when:

  • the applicant has accepted a job offer
  • all conditions under which the offer was made have been satisfied

If they start work before the AccessNI check has been received, the employer should tell them the offer is dependent on satisfactory checks.

Employing someone who is on a barred list

It is unlawful and a criminal offence for an individual who is barred to work with children or vulnerable adults, or apply to work or volunteer in regulated activity with those groups.

If an employer knows the individual is barred and employs them in regulated activity, the employer is also breaking the law and committing a criminal offence.

AccessNI reports these offences to the police.

Referring information to the DBS

If you dismiss an employee or volunteer because they harmed or would have harmed a child or vulnerable adult, you have a statutory duty to report them to the DBS. Even if they resign before formal dismissal, you must tell the DBS. You are breaking the law if you don’t tell the DBS.

Children’s day care providers

Employers who run children’s day nurseries, crèches or play schools must send a notification form about each employee to their health and social care trust. The notification form confirms the outcome of an employee’s AccessNI enhanced check. These employers must give the trust a copy of a disclosure certificate when criminal history information is disclosed.

From 2 November 2015, only the applicant will receive a copy of the certificate. Therefore if criminal history is disclosed the employer must get the applicant’s permission to send the certificate to the health and social care trust.

It may be useful to tell applicants at the start of the recruitment process about this requirement.

Employing someone with a criminal record

Employers should treat fairly job applicants and volunteers who have criminal convictions.

If an employer uses AccessNI checks in the recruitment process, they must have a written policy on the recruitment of ex-offenders. Job applicants and volunteers can ask for a copy of the policy. AccessNI has produced the following sample policy statement, which can be used or adapted for this purpose

Download a sample policy on recruitment of ex-offenders.

If a job applicant’s criminal conviction is disclosed, an employer should consider its relevance to the job. A conviction should not automatically disqualify someone.

If the applicant is on a barred list, they are breaking the law if they apply to work or volunteer with vulnerable groups in regulated activity.

Employing people with conflict-related convictions

There is guidance, issued by The Executive Office, for employers on recruiting people with convictions which occurred during Northern Ireland’s troubles. The voluntary guidance describes best practice when considering job applications from ex-prisoners who were convicted before April 1998.

The guidance recommends that an employer should not consider a conflict-related conviction until the ex-prisoner has successfully completed a selection process.

Employers following the guidance should focus on a job applicant’s qualifications, skills and ability to do the job and ignore any conflict-related conviction unless it is materially relevant to the job.

Download the guidance on recruiting people with conflict related convictions from the Executive Office website.   

How long is an AccessNI check valid?

If criminal convictions are revealed on a disclosure certificate, the information is valid on the date the certificate is issued. An employer should check the date the certificate was issued to decide about getting a new one. In certain employment sectors an AccessNI check may be required periodically, such as renewing a taxi driver’s licence or a licence to work in the security industry.

Employers should not normally take or keep photocopies of an applicant’s certificate. If there is a business specific or appropriate reason for doing so, for example if there is a dispute or complaint, the employer must explain the reason and get the applicant’s permission.  

Employers should not keep a certificate for longer than six months. If the employer needs to keep the copy longer than six months, they must tell AccessNI.

Disputing information on a disclosure certificate

If you believe information is inaccurate on a disclosure certificate, you can find out more information about disputing the certificate at the link below.

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