Check mate

Data inspection iStock 000008204804XSmall 146x219Juli Lau looks at how to draft contractual provisions requiring service providers to obtain CRB checks.

It is common for public authorities to include in their standard contracts for services, provisions requiring service providers to obtain Criminal Records Bureau (CRB) certificates in respect of staff carrying out the services. However, such provisions may not always be appropriate or even lawful, and ought to be drafted carefully. This article briefly summarises the process for CRB checks, highlights the restrictions on carrying out CRB checks, and provides tips on drafting clauses requiring contractors to obtain CRB checks.

Types of CRB certificates

In England and Wales the CRB provides certificates giving either standard disclosures or enhanced disclosures of individuals’ criminal records, while Disclosure Scotland provides only basic disclosures. In addition to information about criminal convictions, enhanced disclosures state if the person is on the statutory lists of persons considered unsuitable to work with children or vulnerable adults.

Who can request a CRB check?

Individuals make the application, but for standard or enhanced disclosures the applications are countersigned by Registered Bodies (employers registered with the CRB or umbrella organisations acting as intermediaries between the employer and CRB).

Who receives the CRB certificate?

Currently, certificates for standard and enhanced disclosure are provided simultaneously to both the individual and the Registered Body. Under the Protection of Freedoms Act 2012, which received Royal Assent on 1 May 2012 but has not fully come into force, individuals will receive the certificate first and have an opportunity to make representations to the CRB disputing the information in the certificate before it is seen by the employer.

In relation to whom can a CRB check be requested?

It is the legal responsibility of the organisation asking a person to make an application for a CRB check, to ensure that they are entitled to ask that person to reveal their conviction history. When counter-signing the CRB application, the Registered Body will need to sign a statement confirming that the application is in relation to an ‘exempted question’, i.e. it is in respect of a position which is eligible for CRB checks. To make a false statement knowingly in this respect is a criminal offence.

The CRB’s eligibility guide published in March 2012 lists the positions for which standard and enhanced CRB checks can be carried out.

The guide also states that organisations should not insist that a CRB check forms part of a recruitment or tendering exercise, unless the relevant services meet the criteria for an eligible CRB check, as this would breach employment law.

On the other hand, it is worth remembering that there are various types of activities for which employers are legally required to make the appropriate checks, e.g. services involved with children/vulnerable adults.

An example - Leisure Centres

The following guidance was issued by the Home Office in September 2011 in relation to leisure centres, providing a useful case-study and reminder of the need to consider the nature of the activities in question:

“A leisure centre is not a listed establishment in the Safeguarding Vulnerable Groups Act 2006 and therefore all roles must be assessed on the nature of the duties the individual will carry out, i.e. training, teaching, instructing and supervising children or vulnerable adults.

Scenario A

There is an aerobics class for young mothers with no childcare facility. Some mothers bring their children along and the children may join in. This is classed as incidental contact with children and the instructor is therefore not eligible for a CRB check.

Scenario B

There is a weekly dance class for children aged 18 and under. The instructor meets the criteria and is eligible for a CRB check even if the children in the class may differ from week to week.

Scenario C

An NHS trust makes arrangements with a leisure centre to provide weekly classes for children or adults as part of a care package in relation to their specific needs. Where the same instructor takes the class, the instructor is eligible for a CRB check.

Scenario D

The leisure centre allows members of the public to hire its premises. A local football club hires a hall for eight weeks to carry out training for the ’under 15’ team. The centre insists that they have to carry out a CRB check for insurance purposes before they can allow him to hire the hall. There is no exemption which allows the leisure centre to insist on a check for insurance/hire purposes.

Scenario E

A leisure centre wants to CRB check their administration, maintenance, catering and cleaning staff as they have opportunity for contact with children/vulnerable adults and may wear the centre uniform so they are seen as a “person of trust”. The contact with these groups is of an incidental nature while they are carrying out their main tasks. If the nature of their duties does not include direct teaching, training, supervising of children or vulnerable adults as described above then it would be an offence under the Police Act 1997 to submit a CRB check on their behalf.

In summary, activities in a leisure centre which are open to the general public are not covered by any exceptions in legislation and, therefore, unless a class or event has been organised wholly or mainly for children or vulnerable adults, the instructor/facilitator would not meet the criteria for a CRB check.”

Drafting suggestions

  • Consider on a case-by-case basis clauses requiring contractors to obtain CRB checks to ensure that they are appropriate for the nature of the services in question;
  • In standard form contracts, avoid using sweeping wording requiring contractors to obtain CRB checks in all circumstances. For example, requiring that “the contractor obtains in respect of all staff, criminal records checks of the most extensive kind available”, would potentially be requiring the contractor to obtain a CRB check where it is an offence to do so;
  • Instead, qualify the requirement, for example by requiring that evidence be provided of a satisfactory criminal record check, of a type or level which is appropriate and permitted by legislation, taking into account the nature of the duties of that member of staff;
  • Consider making specific reference in the clause to the CRB’s eligibility guide (March 2012).

Juli Lau is an Assistant Solicitor at Sharpe Pritchard. She can be contaced on 0207 405 4600 or by This email address is being protected from spambots. You need JavaScript enabled to view it..