Procedure for Handling a Positive Criminal Records Bureau Disclosure

PROCEDURE FOR HANDLING A POSITIVE CRIMINAL RECORDS BUREAU DISCLOSURE

May 2009

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Key Individuals involved in developing Procedure:
Name / Designation
Jayne Fitton / HR Manager, Bath & North East Somerset Council
All HR staff
This procedure has been circulated to the following for general approval prior to publishing :
Name / Designation
Version No / Updated by / Updated on / Details of Change
0.01 / Jayne Fitton / Apr 2009 / Newly drafted Procedure
1.00 / Jayne Fitton / May 2009 / Final Procedure

It is important that Managers seek advice from Human Resources if they are unclear on any aspect of this procedure. This will ensure that proposed actions meet with the requirements of any statutory legislation and Council policy.

PROCEDURE FOR HANDLING A POSITIVE CRB DISCLOSURE

1.1The term “positive disclosure” refers to a disclosure containing information relating to convictions, cautions, reprimands etc., together with any “soft” information relating to non-convictions that the police deem relevant

1.2Only those authorised to receive Disclosure information under section 124 of the Rehabilitation of Offenders Act (1974) will be permitted access to it. Specifically Disclosure information will only be made available to those who are directly involved in the appointment process and those who require such information for safeguarding purposes.

1.3All disclosure information will always be held securely by the relevant parties.

1.4Where a “positive” disclosure has been received the following key stages must be followed by the relevant parties:

People Services will notify the relevant HR Officerwithin 2 working days of receipt of the “positive” disclosure. The information should be handed directly to the relevant HR officerand a note made on the personnel file– specifying the date it was handed over and the name of the HR Officer.

Human Resources will then accept responsibility for ensuring that the information is securely storeduntil such time as it is returned to People Services for retention on the personnel file. Whilst Human Resourceshas temporary possession of the “positive” disclosure, it will be stored on a confidential central file in alphabetical order.

Once notified, Human Resources will carry out an initial assessment of whether the offence(s)/details listed are sufficiently serious to cause concern. Where an officer is in doubt they should refer the matter to the relevantHR Manager.

Judgements made by the relevant HR Officer will always err on the side of caution

If the offence(s) is not considered to be serious then an e-mail/letter will be sent to the manager/headteacher notifying them of the specific issues within 2 working days of having received notification.

Where the offence(s) is of a serious nature then the HR officer will make immediate telephone contact with the manager/head teacher i.e. on the same day the notification is received.

It should be noted that in either case a Formal Risk Assessment will be required – see Appendix A.

1.5Once the manager/headteacher has been advised that a positive disclosure has been received irrespective of the level of seriousness, an interview must be arranged with the employee to explore the issues and circumstances. This interview must take place within 5 working days of notification.

The meeting is an essential part of the process, as it is necessary to verify that the information contained on the disclosure does indeed relate to the individual concerned. This verification must be sought prior to any judgements being made. There have been occasions where CRB system errors have occurred and information supplied has been wrongly attributed to individuals.

The disclosure should be discussed with the prospective employee. The discussion will aid the decision-making process, and should again broadly focus around the following:

The seriousness and nature of the offence(s)
The nature of the appointment
Length of time since the offence(s) occurred
Number and pattern of offences
The applicant’s age at the time, circumstances/explanation
Concealment of offences at application stage

Based upon the findings of the interview(with advice sought from Human Resources where necessary) the headteacher/manager will undertake a risk assessment with regard to the suitability of the employee. Judgements regarding suitability are not wholly confined to the disclosure revealing offences against children or vulnerable adults. Other types of offences may render a prospective employee unsuitable. In addition to convictions or cautions, this may also include having harmed or placed children or vulnerable adults at risk of harm; or having exhibited behaviour, which leads to the belief that there may be a child or vulnerable adult at risk of harm in the future.

The manager/headteacher should not take the decision in isolation, but will be accountable for it.

For directly employed staff: Managers must ensure the Strategic Director is aware of all positive disclosures. Once the risk assessment has been carried out and a decision made, the form must be agreed and signed off by a Strategic/Divisional Director. Any disclosures which raise child protection issues must also be discussed with the LADO (Local Authority Designated Officer) before any approval. This may necessitate the holding of a strategy meeting, if recommended by the LADO.

For schools: All positive disclosures must be discussed with Human Resources. Any disclosures which raise child protection issues will automatically be notified to with the LADO and the Strategic Director of Children’s Services. The school must await their decision before confirming employment.

1.6Additional Guidance on making a decision to confirm employment:

It is not possible to provide a ‘tariff’ of offences since decisions are made taking all of the above factors into account. However, the following anonymised examples provide an illustration of the reasoning behind decisions. In making any decision it is vital that all other pre-employment checks are considered satisfactory. References must have been verified with the previous employer by telephone.

Example 1
Shoplifting conviction 11 years before application. Conviction declared. No further offences since / Decision:  Accept
Example 2
Two convictions for drug offences 5 years before application. Not declared / Decision:  Reject
Example 3
Caution for possession of controlled drug 4 years before application. Caution declared. No further offences. Supportive references. / Decision:  Accept
Example 4
Cautioned for theft 5 years before application. Not declared. A juvenile offence which the applicant believed would not remain on record. No offences since. / Decision:  Accept
Example 5
6 convictions for various offences over 17 year period. Not all declared. / Decision:  Reject
(due to nature of offences and substantial under-declaration).
Example 6
12 offences, including theft, offence against property and public disorder offences over 19 year period. Not declared / Decision:  Reject

In addition managers/headteachers should be aware that statutory guidance makes it clear that serious sexual, violent, drug or drink offences would give rise to a particular concern where a position was one of providing care. It is important to note that driving or drink offences would be relevant in situations involving transportation of children or vulnerable adults.

Whilst offences which took place many years in the past may often have less relevance than recent offences. Convictions for serious violent or sexual offences or serious offences involving substance abuse are more likely to give cause for concern than, for instance, an isolated case of dishonesty committed when the person was young. The potential for rehabilitation mustbe weighed against the need to protect children and vulnerable adults.

1.7Once all relevant parties have agreed to the decision, Human Resources must be notified of the outcome by the manager/headteacher. The notification will be the original signed Positive Disclosure Risk Assessment which will be retained on a central file. In addition to this Human Resources will hold a Positive Disclosure Decisions Spreadsheet which will be password protected and only accessible by approved signatories.

POSITIVE CRB DISCLOSURE DECISION FORM (Risk Assessment)

The recruiting manager/headteacher must use this form to carry out a full risk assessment where a Positive Disclosure has been received. The assessment is designed to support managers/headteachers in making an informed and balanced decision about whether to employ/continue to employ an individual. Before any decision is reached the individual must be offered the opportunity to discuss the contents of the disclosure with the manager/headteacher. Human Resources will provide notification of positive disclosures.

For directly employed staff: Managers must ensure the Strategic Director is aware of all positive disclosures. Once the risk assessment has been carried out and a decision made, the form must be agreed and signed off by a Strategic/Divisional Director. Any disclosures which raise child protection issues must also be discussed with the LADO (Local Authority Designated Officer) before any approval. This may necessitate the holding of a strategy meeting, if recommended by the LADO.

For schools: All positive disclosures must be discussed with Human Resources. Any disclosures which raise child protection issues (or potential issues) will automatically be notified to with the LADO and the Strategic Director of Children’s Services. The school must await their decision before confirming employment.

Name of individual: / Date of Birth: / Address:
Post Applied for: / Service Area: / ISA Registration:
Recruiting Manager: / Signed / Date
Strategic Director: / Signed / Date
LocalAuthority Designated Officer: / Signed / Date
Decision (please tick as applicable) / *Employ with adjustments to role (give details e.g. supervision, monitoring arrangements etc.)
Employ / Do not employ
Discussed with
individual (insert date)

A positive disclosure from the Criminal Records Bureau is a certificate that shows cautions, warnings or convictions. It may show spent convictions and also unspent convictions, and for Enhanced checks, it will also show other information that a police force deems relevant to disclose based on the nature of the job that the individual will be employed to do. Please note that in some cases, the Countersignatory/Human Resources may be prohibited from passing on information disclosed by local police forces to line managers, as it might risk undermining current police investigations.

QUESTIONS TO CONSIDER / Possible Responses / Answer / Comments
Do the ISA Listings (formerly POCA, POVA, List 99) bar the appointment? If the answer is yes then the appointment is automatically unlawful and the person must not be appointed to the post. Do not continue with this decision sheet. / Yes * contact HR immediately
No
Are you satisfied with the candidate’s explanation of the circumstances of the offence?
All positive disclosures should be discussed with the candidate. Note down their explanation of the circumstances. / Yes
Unsure
No
How serious do you consider the offence to be? / Major
Moderate
Minor
Did the offence occur recently?
For example, minor offences that occurred a long time ago may be less relevant than ones that are very recent. / Within last;
1 Year
3 years
10 years
Older
At what age were the offences committed?
Was the offence committed as an adult, or as a child or adolescent? Offences that took place years ago may have less relevance now with the exception of serious violent or sexual offences. / State age
What age is the applicant now? / State age
Does the disclosure show a pattern of behaviour, or was the offence a one-off?
Repeated offences may indicate that the individual has not been able to change his/her offending behaviour, and may be more likely to re-offend. / One-off
Repeat – frequent
Repeat - infrequent
QUESTIONS TO CONSIDER / Possible Responses / Answer / Comments
Have the circumstances that lead the applicant to commit the offence or behave in such a manner changed for the better? Look at all the circumstances, including the employment pattern and the individual’s own explanation. / Yes
No
Maybe
Did the applicant disclose the conviction(s)/ cautions, warnings or reprimands as part of the application process/at interview?
Note that a failure to disclose an offence, without a satisfactory reason, will be a breach of contract and render the employment offer void. / Yes
No – no valid reason
No – but has valid reason
Are there any concerns in regard to the employee’s motivations for working with children/vulnerable adults? / Yes
No
Is there any evidence in regard to any inability to manage conflict, cope with challenging behaviour? / Yes
No
Were any gaps in employment identified and were these cause for concern? / Yes
No
Were both employer references satisfactory and at least one reference verified by telephone? / Yes
No
Does the post involve responsibility for finance, items of value or other high risk areas?
This is particularly relevant where the disclosed offences are related to robbery, burglary or fraud. / High
Moderate
Low
Does the role allow the opportunity to re-offend?
Consider the nature of the post in relation to the disclosed offence(s). / Yes
No
What level of management supervision will the person receive?
What opportunity would there be to re-offend? Will supervision reduce the risk? How much responsibility does the post carry? / High
Moderate
Low
FURTHER COMMENTS/OVERALL SUMMARY

PLEASE ENSURE YOUR FINAL DECISION IS RECORDED ON THE FRONT PAGE OF THIS DOCUMENT AND SIGNED BY THE RELEVANT PARTIES.

THIS RISK ASSESSMENT WILL BE RETAINED CONFIDENTIALLY IN A SEALED ENVELOPE ON THE EMPLOYEE’S PERSONAL FILE - PLEASE RETURN THIS FORM TO HUMAN RESOURCES.

Positive Disclosure Decision SheetMay 2009

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