Aim of this guidance
This guidance is to help you:
- Understand in what situations you should ignore filtered criminal records
- Put measures in place to reduce the risk of taking into account filtered criminal records when you shouldn’t
- Understand in what situations you can take into account filtered criminal records
It sits within the assessing criminal records section as it’s primarily aimed at making sure you don’t make recruitment decisions based on filtered criminal records when they shouldn’t be taken into account.
The focus is on employers that have roles which are exempt from the Rehabilitation of Offenders Act 1974 (ROA). For these roles, both unspent and spent criminal records can be taken into account, but not filtered criminal records.
Why this is important
- There are obligations on employers to disregard filtered offences – Where a standard or enhanced DBS check is being carried out, they won’t disclose filtered offences and employers are legally obliged to not take them into account, even if they’re self-disclosed by the applicant
- DBS checks don’t show everything – Since 2013, the DBS has ‘filtered’ some convictions and cautions from standard and enhanced checks
- There might be consequences if you get it wrong – There are data protection issues if you take into account a filtered criminal record when you shouldn’t
A brief explanation of filtering
‘Filtering’ refers to a process that was introduced by the Disclosure and Barring Service in 2013. It came about through a legislative order.
This process ‘protects’ certain convictions and cautions from being disclosed on standard and enhanced checks. That’s where the phrase ‘protected’ come from – if something is filtered then it becomes ‘protected’.
Protected cautions and convictions are those that are eligible to be filtered from standard and enhanced DBS certificates. For simplicity, in this guidance we refer to ‘filtering’ throughout.
Previously, if a role was exempt from the ROA, an employer was entitled to know about an applicant’s full criminal record history. However, on 29th May 2013, changes were made to legislation that allowed for certain minor offences to be removed or filtered from standard or enhanced DBS certificates.
Filtering happens automatically, before a DBS certificate is issued. If something has been filtered from a DBS certificate, it doesn’t mean that it has been deleted – it will remain on the Police National Computer and may come up in other forms of vetting (e.g. national security clearance).
Which convictions and cautions are eligible to be filtered (or protected) is set out in detail on Unlock’s information site.
When to look at filtering
The filtering process is only relevant to jobs and roles that are exempt from the Rehabilitation of Offenders Act 1974. These roles are able to carry out a standard or enhanced check, which is what the filtering process applies to. Only certain jobs and roles are eligible for these levels of checks.
Most jobs and roles are covered by the Rehabilitation of Offenders Act. This means that, instead of looking at the filtering process, you should look at whether a criminal record is unspent or spent, making sure you don’t take into account spent criminal records.
Establishing if a criminal record will be filtered
If you do a standard or enhanced DBS check, the filtering process will automatically apply before the certificate is issued – so whatever is on the certificate has not been filtered.
It’s not possible to officially determine whether a criminal record will be filtered before a particular check is applied for, but guidance on the process can help.
The image below is taken from Unlock’s guidance on the filtering process.
An applicant may have an old certificate that shows a criminal record that would now be filtered if a new check were to be carried out. That’s why it’s important to not make decisions based on this type of information.
Good practice tips
To reduce the risk of taking into account filtered criminal records when you shouldn’t:
- Be clear right from the start if a role is exempt from the Rehabilitation of Offenders Act 1974 (ROA)
- If the role is exempt from the ROA:
- Make it clear that filtered criminal records don’t need to be disclosed
- Use a ‘type 2’ question at the point when you ask about criminal records
- If an applicant self-discloses a criminal record, check that it’s not filtered before you think about taking it into account
- If the role is covered by the ROA, read our guidance on ignoring spent criminal records.
- If you’re doing a criminal record check, consider waiting until the certificate is issued before considering the applicants’ criminal record
Examples of bad practice
To illustrate why this guidance is important, we’ve included some examples where practice could (and should) be improved.
Other examples will be posted under the tag ignoringfiltered.
Frequently asked questions
This section will be added to over time, responding to the common questions we receive about this guidance.
Wording questions that ask about criminal records – Guidance on asking about criminal records, including suggested wording for roles exempt from the Rehabilitation of Offenders Act 1974.
Guidance on the filtering process – Unlock has guidance on how the filtering process works.
- There is more information about assessing criminal records, which forms part of the practical guidance section of Recruit!
- For further advice about this guidance, please contact us.
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