What employers can (and can’t) do with criminal record check results

Getting a DBS result back is not the end of the process — it’s the beginning of a decision.

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For many employers, this is where things go wrong. Some treat any flagged record as an automatic rejection. Others hold onto information they’re not legally allowed to consider. And some overcorrect, unsure what they’re even allowed to ask or say.

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Criminal record data is not just sensitive. It’s restricted. And once you receive it, your responsibility shifts from collecting it legally… to using it appropriately.

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This article explains what you can do with DBS results — and just as importantly, what you cannot.

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You can’t reject someone just because a check shows something

There’s no law that says a criminal record disqualifies someone from a job. In fact, the DBS Code of Practice explicitly says employers must treat applicants fairly and not discriminate unless the conviction is directly relevant to the role.

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The same principle appears in guidance from the Information Commissioner’s Office: criminal record data must be used lawfully, proportionately, and with care.

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In short, you can’t use a flagged certificate as an excuse to disqualify someone without assessing what the information actually means.

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You must assess relevance, not just presence

If something is disclosed, your first task is to understand how it relates to the job.

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That means considering:

• The type of role — Does the offence impact trust, safety, or legal eligibility?
• The nature of the offence — Was it serious? Violent? Financial? Regulatory?
• How long ago it happened — A ten-year-old caution carries different weight than a conviction from six months ago
• Whether the person was under 18 — Offences committed as a minor are often treated differently
• Whether it was a one-off or part of a pattern
  
  

Fairness doesn’t mean ignoring risk — it means assessing it properly.

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For example, a candidate with a 2015 shoplifting conviction applying for a warehouse role may raise different concerns than someone applying for a financial controller position. The job context matters.

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You must not act on spent or filtered convictions — unless the law allows it

This is a legal red line.

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If the role is not exempt under the Rehabilitation of Offenders Act, you cannot consider spent convictions. And even if the candidate discloses one voluntarily, you must disregard it.

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If the conviction is filtered (as defined in DBS filtering guidance), you’re not allowed to consider it at all — even for exempt roles.

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Doing so could violate both the Rehabilitation of Offenders Act and the Data Protection Act.

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Always check:

• Is the role legally exempt?
• Is the conviction still unspent?
• Has it been filtered out on the certificate?
  
  

If the answer is no, the information must not be used in your hiring decision.

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You should speak to the candidate before making a decision

This is not just good practice — it’s often the fairest way to get clarity.

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If a certificate shows something concerning:

• Ask the candidate for context
• Give them a chance to explain what happened
• Ask how they’ve changed since then, or what support they’ve had
• Keep the conversation confidential and respectful
  
  

You don’t need to justify giving someone a fair chance. But you may need to justify excluding them. Hearing directly from the person can help you make a better, more defensible decision.

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You must document how the decision was made

If you decide not to proceed based on a criminal record, your reasoning should be clear, consistent, and documented.

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Ask yourself:

• Why was this offence incompatible with the role?
• What specific risks were identified?
• Was the decision proportionate to those risks?
  
  

Avoid using vague justifications like “it didn’t feel right” or “we prefer someone without a record.” These are not acceptable in the eyes of the law — and they don’t hold up to scrutiny.

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Keep a simple audit trail that shows:

• What was disclosed
• What was discussed with the candidate
• What the decision was based on
• Who made the final call
  
  

This protects your organisation — and shows you're applying your policies responsibly.

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Final thoughts

Criminal record checks can be a valuable part of the hiring process, especially for roles involving trust, safety, or regulatory oversight. But they come with responsibilities.

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You need to ask the right questions, collect the right data, and make decisions that are fair, legal, and documented. That means not just running the check — but knowing how to respond to what it shows.

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The line between caution and compliance isn’t always obvious. But understanding what you can — and can’t — do with DBS results is a critical first step.

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Need guidance across the full process? Download our guide today.

A Practical Guide to UK Criminal Record Checks for Employers‍

This article is part of a broader guide that covers:

• Check levels and eligibility
• What shows up on a certificate
• How to handle and store results securely
• Common legal pitfalls

Written for HR, legal, and compliance professionals — clear, practical, and ready to use.