Practical guidance - Understanding filtered criminal records and DBS checks

Contents

Aim of this guidance

This guidance is designed to help you comply with data protection law and ignore filtered criminal records in recruitment. This guidance applies to roles which are exempt from the Rehabilitation of Offenders Act 1974. These roles are eligible for standard or enhanced DBS checks and spent (but not filtered) criminal records can be taken into account.

Why this is important

The filtering rules have changed – the rules on what can be filtered from a standard or enhanced DBS check changed on the 28th November.
Employers are legally obliged 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
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’ was introduced by the Disclosure and Barring Service in 2013. 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. In 2019, the Supreme Court ruled that the operation of the filtering system was incompatible with the law and must be changed. On the 28th November 2020 the rules changed and employers who collect criminal records information should be aware of what should now be disregarded.

Filtered cautions and convictions are sometimes referred to as ‘protected’ as the law ‘protects’ certain convictions and cautions from being disclosed on standard and enhanced checks. Filtered criminal records remain on the Police National Computer. These are then automatically filtered from DBS certificates. For simplicity, in this guidance we refer to ‘filtering’ throughout.

Working out whether a criminal record is filtered

The simplest way to make sure you ignore filtered criminal records is to simply carry out a new DBS check, to the permitted level, after making a conditional offer to your preferred candidate. The certificate will disclose any non-filtered cautions or convictions and you can then discuss with the candidate before confirming the offer. However, many employers prefer to ask for self-disclosure. Understanding the filtering rules will help you to assess any information disclosed. If you do ask for self-disclosure, we recommend only doing so after a conditional offer. Use our flowchart to work out whether a criminal record will be filtered and should be legally ignored:

Asking the right question

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.

You should also include a link to updated information on the filtering rules, either on gov.uk or on theHub, Unlock’s information site for people with convictions.

Good practice

To reduce the risk of unlawfully taking into account filtered criminal records:

Be clear whether a role is exempt from the Rehabilitation of Offenders Act 1974 – if the role is covered by the ROA, read our guidance on ignoring spent criminal records.
Make applicants aware of what should – and should not – disclose and provide guidance for applicants so they know what they are legally entitled to withhold.
If an applicant self-discloses a criminal record, check it’s not filtered before taking it into account. They may be unaware of the changes to the rules and continue to self-disclose information they are legally entitled to withhold.
Consider waiting for the certificate before considering the applicant’s criminal record.
Carry out a new DBS check as a certificate issued before the changes may show information that should now be ignored (the update service will not automatically reflect the new filtering rules).
Delete or amend criminal records information that has now become filtered – for example certificates issued before the rule changes.

Examples of bad practice

To illustrate why this guidance is important, we’ve included some examples where practice could (and should) be improved.

Confusing questions about criminal record checks

Steve’s story – Mistakenly disclosing a filtered conviction (wrongly) cost him his job

NHS trusts and the need to include references to filtering

Confusion over filtering legislation and taking into account an old caution

Knowledge Base

Practical guidance – Understanding filtered criminal records and DBS checks