• The Disclosure and Barring Service (DBS) has introduced new filtering rules for Standard and Enhanced DBS certificates, as a result of a Supreme Court ruling that found that some elements of the filtering rules were disproportionate.

    The aim of the changes, which took effect on 28 November 2020, is to make it easier for people with certain convictions to find employment.

    In this article we summarise the main detail of the changes and recommend actions for you to take.

    New DBS filtering rules – what are the key changes?

    • Youth reprimands, youth warnings, or youth cautions will no longer be disclosed.
    • Automatic disclosure of all convictions where an individual has more than one conviction will no longer apply. Instead, each individual conviction will be assessed against the appropriate rules.

    Background to the changes

    DBS (or CRB checks as they were previously known) disclosed all information relating to a job applicant’s history, whatever the conviction, reprimand, or warning, however old.

    Filtering rules were introduced on 29 May 2013 when legislation came into force that removed certain old and minor conviction information, from the Exceptions Order of the Rehabilitation of Offenders Act.

    In practical terms, this affected what an employer could ask an individual in relation to convictions and cautions, and what was disclosed on a Standard or Enhanced DBS check.

    The rules before 28 November 2020 meant that single convictions for non-violent, non-sexual offences which did not lead to a custodial sentence would not be disclosed after 11 years, or five and half years if the person was under 18 at the time of the offence.

    This exemption did not apply if the person had more than one conviction. However minor the offences, if a person had more than one reprimand, warning or caution of any kind, all would be disclosed and none would be filtered. The DBS would also show all juvenile warnings, reprimands and convictions.

    What appears on a DBS certificate now?

    Since 28 November 2020, the following rules have applied to the automatic disclosure of cautions and convictions on a Standard or Enhanced DBS certificate.

    Standard and Enhanced DBS certificates must always include the following records no matter when they were received:

    • All convictions for specified offences
    • Adult cautions for specified offences
    • All convictions that resulted in a custodial sentence (whether or not suspended)

    Other records must be included depending on when the caution or conviction was received:

    • Any adult caution for a non-specified offence received within the last six years
    • Any adult conviction for a non-specified offence received within the last 11 years
    • Any youth conviction for a non-specified offence received within the last five and a half years

    Cautions and convictions not covered by the above rules are classed as ‘protected’ and will not appear on a DBS certificate automatically. In addition, cautions, reprimands and warnings received when a person was under 18 will not appear on a Standard or Enhanced certificate automatically.

    What is a specified offence?

    Parliament has set out a list of specified offences which will not be filtered from a Standard or Enhanced DBS certificate, meaning they will always appear.

    For schools, the most relevant ‘specified offence’ would usually be those of a serious violent or sexual nature and/or those relevant for safeguarding children and vulnerable adults.

    Any cautions (including reprimands and warnings) and convictions not covered by the rules above are ‘protected’ and will not appear on a DBS certificate automatically.

    Why is there a protected caution or conviction on an Enhanced DBS certificate?

    For Enhanced DBS checks only, the local police force may consider that a caution or conviction is relevant to the role the individual is performing.

    Enhanced certificates could include information relating to a caution or conviction that is protected under the filtering rules. For example, if a person requires an Enhanced DBS check with a child workforce due to their role working with children, the police may consider it relevant to disclose information about a caution relating to children received more than six years ago.

    What should schools do as a result of the new rules?

    We would recommend that schools consider the following:

    1: Recruitment process

    Consider whether your recruitment process and documentation needs updating to reflect the changes to the filtering rules.

    DBS certificates created before 28 November 2020 may now include information that is no longer required to be disclosed. When recruiting, it’s advisable not to rely on certificates created before 28 November 2020 but instead request that a new application is made for an up-to-date certificate.

    Any job application forms for positions that are eligible for a standard or enhanced DBS check will need to correctly reflect the new rules.

    Suggested wording on job applications can be found on the government website and the Ministry of Justice provides guidance on asking about self-declarations or criminal records.

    The guidance suggests that you ask candidates the following questions:

    “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)?”

    It also urges employers to include the following paragraph in their standard job application forms:

    “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.”

    The guidance also says: “Employers can only ask an individual to provide details of convictions and cautions that they are legally entitled to know about.

    “If an employer takes into account a conviction or caution that would not have been disclosed, they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

    “Employers should conduct a case-by-case analysis of any convictions and cautions disclosed and consider how, if at all, they are relevant to the position sought. It would be advisable for the employer to keep records of the reasons for any employment decision (and in particular rejections), including whether any convictions or cautions were taken into account and, if so, why.”

    2: Update policies and training

    Ensure that school policies reflect the changes and that all staff dealing with the recruitment process are aware of and receive training on the new rules.

    3: Data Protection and GDPR

    Under data protection legislation you should only keep information for as long as necessary and existing staff have the right to have out of date information erased.

    It is recommended that you review your privacy notice(s) and/or retention policy to ensure that the new rules are taken into account and are reflected accordingly.

    We also recommend that you review records of existing staff. If they have recorded criminal records which are now filtered under the new rules, it would be advisable to remove that information from their record.

    This minimises the risk that you may make decisions based on information that you should not be taking into account.

    Further support

    Find out more about our work in the education sector.

    For further guidance on the issues covered in this article, book a free 30-minute consultation with our Employment team today.

    This content is correct at time of publication

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