New Disclosure and Barring Service Filtering Rules
From 28th November, the rules around the disclosure of convictions and offences have changed.
Under the new rules, youth cautions, reprimands and final warnings will not be automatically disclosed to employers who request a certificate from the Disclosure and Barring Service (DBS).
In addition, the multiple conviction rule has been abolished. This means that if an applicant has more than one conviction, regardless of the type of offence or the length of time that has passed since the conviction, each conviction will be considered for disclosure individually rather than automatically being disclosed.
The DBS guidance explains that “employers can only ask an individual to provide details of convictions and cautions that they [the employer] are legally entitled to know about.” Since the new rules change an employer’s legal entitlement, they will have to take this into account when deciding which questions to ask either at interview or other points of the recruitment process.
In the year 2018/19, almost six million disclosure certificates were issued by the DBS.
What should employers do now?
With the changes to the system, employers’ application forms and other documentation may be asking questions that are no longer relevant or current. Therefore, DBS guidance recommends that businesses and organisations update their recruitment procedures and paperwork as soon as possible. The section of the application form that deals with cautions or convictions should now use the following text, or something with the same legal meaning:
Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974? (Y/N)?
Do you have any adult cautions (simple or conditional) or spent convictions that are not protected as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020? (Y/N)?”
Employers are also encouraged to use the following paragraphs in their application forms to ensure they comply with the new rules.
“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.
“Full and comprehensive guidance on whether a conviction or caution needs to be disclosed when applying for a job can be found on the Ministry of Justice website.”
There is a list of offences that will always be disclosed on a Standard or Enhanced DBS certificate (unless they relate to a youth caution). These are known as ‘specified offences’ and are usually of a serious violent or sexual nature. This will be relevant if the post being filled is one which involves safeguarding of children and vulnerable adults.
All convictions resulting in a custodial sentence, whether or not suspended, will always be disclosed.
On the DBS Application form, there is a question that asks:
“Do you have any convictions, cautions, reprimands or final warnings which would not be filtered in line with current guidance?”
The DBS will update the question to remove the reference to ‘reprimands or final warnings’, but in the meantime, applicants should respond only with regard to convictions or cautions that are not protected.
It is expected that the new rules will benefit job applicants who have childhood cautions and those who have committed minor offences but who have moved on with their lives, away from past misdeeds. This is expected to increase the opportunities for ex-offenders to find employment and move on with their lives.
Convictions and adult cautions for offences specified on a list of serious offences, which received a custodial sentence, are recent or unspent will continue to be disclosed under other rules.