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 planned changes will remove automatic disclosure of:
- youth cautions, reprimands and warnings (an out of court disposal issued to young offenders that were replaced by youth cautions in 2013); and
- all spent convictions where the individual has more than one conviction (except where disclosed under the other rules).
These changes – likely to come into force later this year – signal a more balanced approach to disclosure and will help employers recruit from the widest talent pool. Now is the time for recruiters to check recruitment processes are up to date and get ready for the changes.
The simplest way to collect only relevant information is to wait for the DBS certificate and discuss anything it reveals. However, we know most ask employers ask applicants to self-disclose criminal records so this post highlights the four areas to look at when preparing for the changes – 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.
Avoid asking broad questions like ‘Have you ever been convicted?” or “Do you have a criminal record?”. These encourage applicants to disclose information you should legally ignore, potentially breaching 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 anything that would be filtered by the DBS]”
If applicants do disclose a criminal record, you’ll need to check whether you are legally obliged to ignore it. The new filtering rules mean all reprimands, final warnings and cautions accepted when under 18 should be ignored. Multiple cautions and convictions should also 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.
Until the changes go live, the existing rules apply. Unfortunately, we often see employers reject candidates for any criminal record. If you are making recruitment decisions now, bear in mind that some of the information you can see now will be filtered in a few months. Read more about when to ignore criminal records.
Carrying out DBS checks
Criminal records which become eligible for filtering will automatically be removed from DBS certificates at the time a check is requested so any new checks carried out after the rules change will be accurate. 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, or using the update service.
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
Making small changes to your recruitment processes now will mean you’re ready to offer talented candidates with convictions a fair chance in the coming months. 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