DEMYSTIFYING THE DISCLOSURE PROCESS – Article No.2 – The Enhanced Disclosure

In this article we look at the Enhanced Disclosure 

What is it?

A disclosure is a document containing impartial and confidential criminal history information held by the police and government departments, which can be used by employers to make safer recruitment decisions. 

As with other disclosure checks, the law is quite strict about the various types of disclosure that can be requested.  

In the case of an enhanced disclosure, Section 9 of The Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 identifies the circumstances under which it can be issued.

The Act dictates when an exempted question can be asked regarding an individuals full criminal history.  An exempted question applies when the individual will be working in specific occupations, for certain licenses and specified positions.

The reason for this is that the law ( in this case the Rehabilitation of Offenders Act ) gives individuals the right not to disclose details of 'spent' convictions if asked about a criminal record. However, for certain exempted professions, offices and employments, ex-offenders have to disclose information about spent, as well as unspent convictions if the job referred to is exempted. This allows for all previous convictions to be disclosed so that employers can make informed decisions about safe recruitment and retention of staff.

Who needs it?

The following are some examples of professions where the exempted question can be asked and therefore subject to Enhanced Disclosure Checks.

Betting and Gaming 

• Local lottery manager or promoter
• National Lottery posts
• Positions in a casino
• Posts concerned with betting
• Selling, supplying or maintaining gaming machines

 

Legal 

• Advocate or Solicitor (in Scotland)
• Registered foreign lawyer
• Legal executive
• Receiver appointed by the Court of Protection
• Approved legal Services body Manager
• Any office or employment in the Crown Office or Procurator Fiscal Service
• Clerks (including deputy and assistant clerks) and officers of the High Court of Judiciary, the Court of Session and the district court, sheriff clerks (including sheriff clerks deputy) and their clerks and assistants.

Others 

• Adoptive parents
• Foster parents
• National Care Standards Commission
• Home Inspector

 

Medical Services 

Although the exempted question requirement under the Rehabilitation of Offenders Act refers to those involved in the provision of Health and Care Services, which include: 

• Dentist
• Director of private dental or opticians practice
• Doctor
• Optician (including ophthalmic optician)
• Pharmacists
• Osteopath, chiropractor, psychologist
• Nurse, midwife
• Pharmacist

 

Whilst an enhanced disclosure is suitable in England and Wales, in Scotland the Enhanced Disclosure has been superseded by the Protection of Vulnerable Groups (PVG) Scheme if the post involves regulated work with children and or protected adults and whether pair or unpaid. 

Since February 2012 when the scheme was introduced, anyone applying for such a post would require to become a member of the PVG Scheme. (See our article on this website - The PVG Scheme)  In recognition of the influx of members to the newly established PVG Scheme, the Scottish Government allowed a three-year period of grace to enable a phased uptake of the scheme.   In effect this means that by October 2015, anyone who undertakes regulated work will require to become members of the PVG Scheme.

Unlike the PVG Scheme, Enhanced Disclosures are only as accurate as the date on the certificate.  There is no requirement or facility to monitor or update an employer in the event that other information comes to the attention of the authorities.

When is an Enhanced Disclosure required?

 If you are applying for a new post or it has been some time since the disclosure information was last updated, your employer may request one. 

What information does it contain?

 

Information regarding the applicant gathered from a variety of source and is known collectively as vetting information. Where relevant, this information will be used by an employer to decide whether a person is suitable for a particular post or not.

 

The vetting information is conviction information retrieved from criminal justice systems and includes 

 

• Unspent Convictions
• Spent Convictions
• Cautions
• Sex Offenders Notification Requirements
• Other Relevant Information

 

Certificates are issued to the individual applicant and a copy is made available to the employer or potential employer. In respect of secure handling and storage it is currently an offence for disclosures to be shared with a third party.  Employers are not permitted to retain any paper or electronic image of the disclosure information for longer than is necessary and in any case beyond 90 days.

They must ensure that disclosure information is destroyed in a secure manner i.e. by shredding, pulping or burning.  They also have to ensure that disclosure information, which is awaiting destruction, will not be kept in any insecure receptacle. They may however, record the date of issue, the individual’s name, the disclosure type and the purpose for which it was requested, the unique reference number of the disclosure and details of the decision.

 

Where can you get one?

 

Disclosure Scotland is responsible for the issues of all disclosure certificates.

It is an Executive Agency of the Scottish Government operating on behalf of Scottish Ministers.  They provide criminal history information to organisations and potential employers to assist them to make safer and more informed recruitment decisions.

If your employer potential employer is registered with Disclosure Scotland and has appointed an authorised signatory they should be able to assist you with the necessary forms, navigation of the process and countersign the application before sending it to Disclosure Scotland for processing. 

Another option is to become an authorised signatory by applying to Disclosure Scotland, undertaking a vetting process and paying the requisite fee and annual renewals.

If your employer does not have an authorised signatory, and you do not wish to  register as one then you will require the assistance of an Umbrella Body.  

Umbrella bodies are registered with Disclosure Scotland specifically for this purpose and are vetted to ensure they are suitably trusted to receive the information obtained in any application.  They will undertake the Authorised Signatory role, which involves checking documentation and examination of supporting identification documents.  Once validated there, is a legal requirement for the form to be countersigned by them before sending it to Disclosure Scotland for processing.

Conclusion

 

As with everything we publish on our website, if you can’t find the answers you are looking for or are unsure and would like more information, please get in touch with us.

We provide professional, helpful and free advice to all our clients and look forward to assisting you.