An employer's duty to refer to the DBS

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Employers in the NHS have a legal duty to refer to the Disclosure and Barring Service (DBS) in certain situations. This includes where the worker has been supplied by a personnel supplier, for example, an agency or third-party contractor.

A referral means sharing information about a person with the DBS. This will usually be a concern that an individual may have harmed a child or member of a vulnerable group, or put them at risk of harm. 

When to refer

The DBS set out two conditions which both need to be met for there to be a legal duty to refer.

Condition 1

As an employer, you withdraw permission for a person to engage in regulated activity with children and/or vulnerable groups, or you move the person to another area of work that isn’t regulated activity. This includes situations when you would have taken this action, but the person was redeployed, resigned, retired, or left. For example, a doctor resigns when an allegation of harm to a patient is first made.

Find out what constitutes regulated activity for adults and children on the Gov.uk website. You may also find our DBS eligibility tool helpful.

Condition 2

As an employer, you believe the person has carried out one of the following.

  • An action with satisfies the harm test in relation to children and / or vulnerable groups. A person meets the harm test if they cause harm, cause someone to be harmed, put them at risk of harm, attempt to harm or incite another to harm. 

  • They have engaged in relevant conduct. This is conduct which endangers or is likely to endanger a child or someone from a vulnerable group, may endanger if repeated again, involves sexual material relating to children (including possession), or conduct of a sexual nature.

  • They have been cautioned or convicted of a relevant offence for example, automatic barring from working with adults or children in regulated activity, either with or without the right to make representations). Further information about automatic barring offences can be found on the DBS factsheet.

Legal duty to refer

A person or organisation that does not make a referral when the legal duty conditions are met will be committing an offence and, if convicted, may be subject to a fine of up to £5,000. The duty still applies if an individual has resigned before a formal decision to dismiss or remove them from regulated activity has been made.

You may still choose to refer in the interests of safeguarding children or vulnerable adults where the conditions aren’t fully met, for example where concerns have been shared with you, but you haven’t removed an individual from regulated activity as you do not have enough evidence to dismiss them.

Making a referral

Referrals can be made through an online referral form or by post. It’s important to provide as much relevant information as possible, as the DBS rely on the quality of information provided when making any decisions. Ideally referrals are timely, detail the chronology of events and contain information to facilitate the DBS decision making process. Where relevant, they would include details of internal and external investigative and disciplinary processes.

Further guidance on employer duties to make referrals to the DBS, what information may be required as part of a referral, and how information is considered can be found on the DBS website.

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