Duty to refer unsuitable people to criminal records agencies
Legal duty to refer
If you provide regulated activities or work for children, you have a legal duty to refer anyone who has either:
- left your organisation
- or moved to a role which does not involved regulated activity
because they harmed or might have been at risk of harming a child.
Regardless of whether the person was dismissed, moved roles, or left of their own accord, a referral should be made to the relevant disclosure and barring agency. Failure to do this is a criminal offence.
Regulated activity providers in England, Northern Ireland and Wales use the Disclosure and Barring Service (DBS) to make referrals. Organisations in Scotland use Disclosure Scotland. Both agencies are aligned and recognise each other’s decisions. A person who is barred from working with children in one nation will be barred across the UK.
A report to other appropriate regulatory bodies might also be made. These could include:
- regulators for your organisation (for example the Charity Commission in England, Northern Ireland and Wales or the Charity Regulator in Scotland)
- regulators for particular professions (for example the Teaching Regulation Agency in England and Wales or the General Teaching Council in Northern Ireland and Scotland).
> Find out more about safer recruitment
What is regulated activity or work?
Regulated activity or work refers to the types of work with children or vulnerable adults which people can be barred from doing. The DBS and Disclosure Scotland both have their own criteria for what constitutes regulated activity or work.
> Read more about vetting disclosure and barring checks
Who can make a referral to the Disclosure and Barring Service (DBS) or Disclosure Scotland?
If you employ paid staff or volunteers in a regulated activity or regulated work, you can make a referral to the DBS or Disclosure Scotland.
Examples of other types of organisations with a duty to refer include:
- personnel suppliers and employment agencies
- local authorities
- professional regulatory or supervisory bodies
- educational institutions.
If a parent or member of the public has a safeguarding or child protection concern about someone who is working in a regulated activity or work with children, they should contact the police, social services or the person’s employer.
If you have concerns about a child or an adult who is working or volunteering with children, you can contact the NSPCC Helpline on 0808 800 5000 or email email@example.com.
When to make a referral to the DBS or Disclosure Scotland
It’s important to follow your organisation’s child protection and disciplinary procedures to establish facts and gather evidence before making any referral.
A referral must be made to the DBS or Disclosure Scotland, if a person has left your organisation because evidence has been found that they:
- harmed a child
- pose a risk of harm to a child
- accessed or have been in possession of sexual abuse material relating to children
- accessed or have been in possession of sexually explicit images depicting violence against someone
- sexually abused a child
- or have received a caution or conviction for a relevant offence.
This is referred to as ‘relevant conduct’ by the DBS.
A referral can be made if none of this conduct has taken place but it is still believed that a person may harm a child, or put a child at risk of harm. In England, Northern Ireland and Wales, the DBS refer to this as the ‘harm test’ (DBS, 2017).
With the information provided, the DBS or Disclosure Scotland will decide if the person should be added to their barred list to prevent them from working in a regulated activity or work with children again in the future.
Even if there has been no police involvement, or the decision has been made not to take criminal proceedings further, a referral can still be made to the DBS or Disclosure Scotland.
What your referral should include
When making a referral, it’s important to provide the DBS or Disclosure Scotland with as much supporting evidence as possible to enable them to make their decision.
Along with the person’s name, personal information and employment details it’s important to include:
- details of any external investigations carried out by the police or other agencies
- details of any other internal disciplinary actions, or complaints about the person’s conduct
- training and supervision records that are accurate and include dates
- signed and dated witness statements
- an impact statement from the child who has been affected, if appropriate
- a chronology and detail of events from the initial notification of inappropriate conduct to the final outcome of any investigations
- other appropriate evidence to support harmful or potentially harmful conduct, such as taped or videoed interviews.
The referral shouldn't identify any children by name. Rather than naming a child you should use their initials or refer to them as Child 1 or Child 2. Children’s gender and age can also be included.