Confusion over filtering legislation and taking into account an old caution

We’ve recently been involved in a case where an employer suspended an individual from his teaching position as a result of the alleged non-disclosure of a caution he’d received 9 years ago.

Following the introduction of new legislation in May 2013, the individual’s caution was eligible to be filtered from standard and enhanced Disclosure and Barring certificates from September 2014. and he was therefore not legally required to disclose it to an employer when he started the job.

As part of their administrative policy, the school requested that all staff and volunteers complete a ‘disqualification declaration’ form each year and these had been completed by the individual in 2015 and 2016, although he had not provided any details of his caution.

In early 2017, the school became aware of the individual’s caution which had not been disclosed on the disqualification declaration. The school immediately took the decision to suspend him.

We wrote to the school offering to help them in their investigation and providing them with the following information:

  • Government legislation was introduced in May 2013 allowing for minor cautions to be ‘filtered’ from standard and enhanced Disclosure and Barring checks after a period of 6 years. Once a caution becomes eligible for filtering, it is deemed to be ‘protected’ and legally does not need to be disclosed to an employer. It would not appear on a standard or enhanced DBS certificate.
  • In September 2014 this individual’s caution became eligible for filtering. This was confirmed by the enhanced DBS check the school had undertaken in June 2015, which came back with “None recorded” under the section of the check for convictions, cautions, reprimands and warnings.
  • As the individual had been asked to complete the disqualification declaration forms in March 2015 and October 2016, he had no legal obligation to disclose his caution from August 2008.

After considering the information provided to them, the headmaster lifted the suspension and apologised for any inconvenience that he had caused. He said that he was new to the role and did not fully understand that filtering legislation.

Lessons

This case showed how many employers are not aware of the filtering rules, so can mistakenly try to take into account convictions that they are not legally entitled to consider.

Links

Notes about this case study

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Christopher Stacey