Criminal records check clawback agreement

If you're required or permitted to obtain a standard or enhanced disclosure check on prospective employees because of the nature of their job role and you agree to pay the application fee, use our criminal records check clawback agreement to recoup the payment if they resign within twelve months.

Types of check

For certain jobs and professions, an individual must - if asked to - disclose their full criminal history by permitting you to apply for a DBS (Disclosure and Barring Service) criminal records check. There are three types of DBS criminal records check, known as basic, standard and enhanced disclosure checks. Basic disclosure is the lowest level of criminal records check and is applied for by the individual themselves (or they can use the services of a “Responsible Organisation” to submit the basic disclosure check on their behalf). Standard disclosure is available for certain specified occupations and entry into certain specified professions. Enhanced disclosure is the highest level of criminal records check and is available for those working in “regulated activity” with children or vulnerable adults. Thus, if your business involves employing people to work in regulated activity or in any other area covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974, you can ask all your prospective employees (and existing employees) to apply for a DBS standard or enhanced criminal records check. To submit an application for a DBS standard or enhanced criminal records check, you must either register with the DBS or use the services of a DBS-registered umbrella organisation as the application will need to be countersigned by a "countersignatory" within a “registered body”.

Costs

The DBS charges a fee to process criminal records checks. Standard disclosure currently costs £18 and enhanced disclosure costs £38. Whilst the individual being checked is primarily responsible for the cost, most employers agree to pay this fee on behalf of the applicant. Those fees might not sound exorbitant as one-offs, but the costs can soon mount up if you obtain one on the majority of your staff and you have high rates of staff turnover. So, if you do agree to pay the fee on the applicant’s behalf, then you ideally need to have some means of clawing it back if, say, they then choose to leave employment within the first twelve months. This is where our Criminal Records Check Clawback Agreement comes in. It provides for the full cost to be deducted from the employee’s final salary payment in the event that they resign within twelve months of their start date. Likewise, if you obtain a subsequent DBS criminal records check during employment, it again provides for the full cost to be deducted in the event that they resign within twelve months of that later check being applied for. Make sure you get the applicant to sign the clawback before the DBS application is submitted, i.e. before you’ve paid the fee. Obviously, if the applicant is required to pay the fee themselves, this won’t be an issue and the individual won’t need to sign a clawback. As the criminal records check is likely to be mandatory for staff, do take advice if the employee is paid at or very close to national minimum wage (NMW) levels, as the contingent deduction is likely to be classed as a pay reduction for NMW purposes, meaning the employee must still be left with at least the NMW after the potential deduction has been taken into account.