New Legislation for Mental Health Checks

Previous guidance provided by the Home Office has meant that many people who had previously been detained under the Mental Health Act were at risk of losing employment opportunities due to the lack of clarity provided in their DBS checks. However, a recent change in legislation incorporates new measures which provide the police with the authority to make the decision on whether information is included or omitted from a DBS check regarding mental health issues. This aims to make the system fairer without lessening protection. Our CEO Rachel Bedgood shares her views on what the recent changes in legislation will mean to employers and potential employees. 

Background screening should be a vital part of the recruitment process for employers to ensure they have all the relevant information about a potential employee.  Those who have previously applied for background checks on their candidates may have noticed information being included about previous mental health issues without a full explanation as to why this was relevant for the job applied for and without disclosing the candidate’s current state of mental health, leaving many candidates unfairly dismissed from job opportunities.

Many critics have taken to social media in the past to voice their dissatisfaction, with one particular user claiming ‘your physical health isn’t listed on a DBS so why should you mental health?’ and therefore suggesting shouldn’t be included in DBS checks.

He then went on to note his frustration at the lengthy process of his DBS check and claimed that he was told that this was due to his background with mental health. This led him to believe that the check was putting his job at potential risk.

Mental health appears to be a topic that many people feel uncomfortable discussing in their work environment. A survey conducted in 2009 by Time to Change highlighted that 92% of Britons felt their job prospects would be threatened if their mental health issues were disclosed to employers. In 2011, 43% of people said they would feel uncomfortable talking to their employer about their mental health history. Although this a clear improvement compared to the 50% statistic in 2010, there is clearly still a long way to go in combating the stigma surrounding mental health and the disclosure of these issues in the workplace.

However, some may feel that improvements are continuing to be made with recent guidance released by the Home Office stating that mental health cases will not necessarily be included in a DBS check if they are not deemed relevant. Relevance will be judged by the police and will be based on the behaviour of the person during the incident, the date of the incident and if it included a criminal investigation. If a case is included on a DBS check, it needs to be provided with an explanation of relevance and the candidate’s current state of mental health. In an article for the Guardian, Paul Farmer, chief executive of mental health charity, Mind, claimed that “there is no reason why having a mental health problem or having been previously detained under the Mental Health Act should necessarily be a red flag when it comes to DBS checks.”

For employees, this means that the guidance will help those who have previously been unfairly refused employment due to a prior detainment under the Mental Health Act. The new guidance aims to treat mental health issues in a similar way as medical records, ensuring privacy and security for individuals. It is hoped to provide a faster turnaround for DBS checks and a better rate of employment opportunities. This change is a step towards breaking the stigma surrounding mental health issues which affect one in four of us every year.

Yet, should we be leaving this responsibility solely in the hands of the police? Police have been advised to act with caution as their disclosure can have serious impacts on individuals. However, this change has the potential to have a detrimental effect on employers. Although they have been advised to provide employers with information that is necessary to the vacancy, police may not have sufficient knowledge of the business and may not understand what should be included as necessary information which is needed to protect those in the potential employer’s care. Information provided by police for DBS checks need to be as detailed as possible, consistent and valid to ensure that employers are not left vulnerable to these changes. This is especially important in dealing with vacancies that involve working with vulnerable groups.