Doing enhanced DBS checks? Make sure you get any questions about criminal records right

We were contacted by an individual who was concerned that a question on an employer’s application form in respect of a job requiring an enhanced Disclosure and Barring Service checks was misleading as it did not provide any guidance around ‘protected’ cautions and convictions.

The question on the application form stated:

“Criminal Convictions (see guidance notes)

Have you ever been convicted of a criminal offence?    Yes   No If yes, please give details below of the offence and the sentence imposed:

If you are applying for a job which clearly states involvement with children or young people, or a teaching job, please additionally complete this section. As these positions are exempt from the Rehabilitation of Offenders Act 1974, please detail below all convictions, cautions and bindovers, including those regarded as ‘spent’.

I declare that I have not been convicted, nor had any criminal proceedings against me, nor have I been warned, either orally or in writing, in relation to a sexual offence or child abuse.  I declare that there are no such proceedings pending against me at the date of this declaration.”

We contacted the employer setting out our concerns that the application form did not make reference to the fact that applicants did not have to disclose filtered or protected convictions, cautions, reprimands or final warnings for roles that involved an enhanced DBS check.

The employer responded, stating that they had recently appointed a new project manager who had also identified concerns with the wording of their application form, and was in the process of reviewing it. They confirmed that they would be using the Fair chance recruitment section of this site which they had already found to be “very helpful”.

A few months later the employer provided us with a copy of their updated application form which stated:

“The British Council has identified this position as an ‘eligible position’, according to the Rehabilitation of Offenders Act (Exceptions) Order 1975 (as amended in 2013). In addition to current ‘unspent’ convictions, you are required to declare details of any ‘spent’ convictions, cautions, reprimands and final warnings that are not ‘protected’, as defined by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (as amended in 2013). This Order provides that certain spent convictions and cautions are ‘protected’ and do not have to be disclosed and cannot be taken into account by the employer.

If you are not sure whether your convictions are ‘protected’, guidance can be found on the Ministry of Justice website.”

Lessons

This case shows how employers can struggle to ask questions about criminal records in clear and simple terms, especially given changes to the rules which, in this case, came into force in May 2013.

However, once they’re made aware of any misleading questions, some are happy to amend their questions to ensure that they are clear and concise.

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Notes about this case study

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Christopher Stacey