If you recruit for jobs that are exempt from the Rehabilitation of Offenders Act you will be familiar with filtering. Since May 2013, some cautions and convictions are automatically ‘filtered’ from standard and enhanced DBS certificates and job applicants are legally entitled to withhold filtered cautions and convictions from employers. The existing rules apply to England and Wales. Disclosure Scotland provide guidance on the filtering process that applies to standard and enhanced checks for jobs in Scotland.
In January 2019, the Supreme Court ruled that two aspects of the filtering regime – the multiple convictions and childhood cautions – was disproportionate and in breach of Article 8 of the European Convention on Human Rights. The Department of Justice in Northern Ireland amended their rules in March 2020. The government announced in July 2020 its intention to amend the rules for England and Wales.
The rules changed on the 28th November 2020 and standard and enhanced DBS certificates will no longer automatically disclose:
- youth cautions, reprimands and warnings
- all spent convictions where the individual has more than one conviction (unless disclosed under the other rules).
The simplest way to collect only relevant information is to wait for the DBS certificate and discuss anything it reveals. However, we know most employers ask applicants to self-disclose criminal records so this post highlights the four areas that may need changing – asking questions, assessing information, carrying out DBS checks and information management.
We encourage employers to ban the box, removing questions about criminal records from application forms. This avoids collecting sensitive information unnecessarily and means applicants are more likely to be considered on their skills and abilities first. If self-disclosure is necessary we recommend waiting until after a conditional offer.
Broad questions like ‘Have you ever been convicted?” or “Do you have a criminal record?” can encourage applicants to disclose information you should legally ignore. Collecting information you are not legally entitled to is a breach of your data protection obligations and can be off-putting for talented applicants who know their information rights. Instead, ask a question that makes it clear you understand applicants’ rights too, something like:
“Do you have any convictions or cautions that would not currently be filtered by the Disclosure and Barring Service (DBS)? [You do not need to disclose reprimands, final warnings or youth cautions, or anything that would be filtered by the DBS]”
The DBS encourages employers to add the following paragraph alongside the question:
The amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’. This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account.
If applicants do disclose a criminal record, you’ll need to check whether you are legally obliged to ignore it. The new rules mean all reprimands, final warnings and cautions accepted when under 18 should be ignored. Multiple cautions and convictions may also need to be ignored, depending on the type of offence, the sentence and the time that has passed since.
DBS data shows the most commonly filtered offences – these are listed in the table below. If an applicant discloses an old caution or conviction for one or more of these offences, you should check whether it would now be filtered from a DBS certificate.
The DBS has published a list of specified offences not eligible for filtering.
If the offence is eligible for filtering, our flowchart will help you work out whether it should be ignored.
Read more about when to ignore criminal records.
Carrying out DBS checks
Criminal records eligible for filtering will automatically be removed from DBS certificates so certificates issued after the 28th November should be accurate.
If you are making recruitment decisions now, avoid asking applicants to provide an old certificate as it may disclose information you no longer need to know. Existing staff have the right to erasure of out of date information – you may need to consider bringing forward a repeat DBS check. The new rules will not be automatically applied on the update service. Instead, you will need to request a new check.
You’ll need to consider how to manage existing information
- records of current staff with criminal records filtered by the new rules may need to be amended or deleted
- policies and training may need to be updated to reflect the rule changes
Failing to make those changes could result in a GDPR breach and a potential claim for damages.
Unlock offer training for employers and practitioners advising on criminal records disclosure. We are currently running training remotely – see here for more and information and upcoming dates or contact firstname.lastname@example.org to discuss your requirements.
For further advice on filtering, please contact email@example.com
Earlier versions of this post were published on 1st September 2020 and 19th November to reflect government announcements on the commencement date of the rule changes.