The question
We are currently looking into whether we need to undertake CRB checking for some of our site engineers, but are not 100% sure if we require it?
As a company, we occasionally (and I have to highlight that it is only occasionally) send engineers out to schools or attend calls in social housing facilities where they may come across and work in close proximity with children. Some of our engineers say that they feel vulnerable and worry that they are not protected as much as they could be should there be an accusation from someone at one of these sites.
Do we need to get CRB clearance for these engineers before they can go out to these sites, even though they will not be working directly with children?
We also work with ‘service partners’ that are linked to our company and attend sites on our behalf if we do not have the resource to do so ourselves. They are not directly employed by the company but almost represent it when out on site.
So if CRB checks are required for our engineers, would our responsibility also extend to these service partners or would their employer be responsible for this?
The legal verdict
Esther Smith, a partner at Thomas Eggar
CRB checks are required both for persons carrying out activities that require close contact with children such as teaching or social work and also for those whose work may put them into contact with children at certain prescribed establishments, provided that this work is carried out on a ‘frequent’ or ‘intensive’ basis.
‘Frequent’ in this context means once a month or more and ‘intensive’ means three or more days out of a 30-day period or through the night (between 2am and 6am).
A school is one such prescribed establishment and, therefore, your site engineers would require CRB checks, if this occasional work does in fact meet the definitions of ‘frequent’ or ‘intensive’ as outlined above. If your engineers do require CRB checks, they will also need to be ISA-registered, an accreditation that can now be applied for using the same application form as the CRB check.
Social housing facilities, however, are not necessarily deemed to be prescribed establishments unless they are used exclusively or mainly by vulnerable groups, which may include children. If this is the case, your engineers would require CRB checks (and ISA registration) if the work undertaken there was ‘frequent’ or ‘intensive’.
If you are in any doubt as to whether your working patterns would meet these definitions, it is always better to err on the side of caution and get the checks done, particularly if your employees have expressed concern themselves.
Generally speaking, the service partners that you work with would be responsible for ensuring that the relevant checks are carried out for their own staff, if such checks are required.
However, you could still be liable if you permit people who have not been CRB-checked to work in such a situation, even if they are not your employees. Therefore, you ought to ensure that you obtain information from your service partners to ensure that they are complying with these checks, if they are required.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
I note that you ask whether CRB checks are required for your staff as they “occasionally” work in schools and in social housing facilities. In short, the answer is no CRB checks are not required just because of this occasional potential contact with children.
However, if you contract with a school, local authority, health or social care provider or social housing provider, it may be a requirement of the contract that your staff be CRB-checked if they go to work at schools or the housing facility.
But it may also be the case that, even if there is no current requirement on you to CRB-check such staff, you might want to do so anyway. Employers may opt to check whether their employees have criminal records for a number of reasons such as:
- the work that a staff member does makes a CRB check desirable
- it may make your company more attractive to local authorities, health bodies or social care sector clients
- you simply want to know about an individual’s criminal record history to assess their suitability for a job with you.
In these circumstances, it will only be possible to obtain a standard rather than an enhanced CRB check, which means that you will not be informed of spent convictions. You should also be aware of the other limitations of a CRB check. These are:
- CRB certificates are only correct as at the date of issue so they can become out of date. You should, therefore, consider including a contractual requirement that employees tell you of any new convictions received during employment
- The CRB disclosure may not contain details of overseas convictions
- The CRB disclosure will only indicate the offence committed, but will not show the details or the context in which it was committed.
Finally, you ask about your “service partners”, which I assume to be sub-contractors. If that is correct, you will have a contract with them and could, as part of that arrangement, require that individual workers have an up-to-date CRB check, undertaken at their or their employer’s expense, as a condition of working with you.
Just be sure to check that the cost is not passed on to you in terms of contract pricing!
Martin Brewer is a partner at Mills & Reeve LLP.
