Filtering is the term used to describe the process that identifies which criminal records are disclosed on a standard or enhanced DBS certificate (DBS check).
Filtering rules have been in place since May 2013 and affect both what an employer can ask an individual in relation to their convictions and cautions and what is disclosed. Those filtering rules 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 a half years if the person was under 18 at the time of the offence. But this process did not apply if the person had more than one conviction, however minor the offences.
There have been a number of legal challenges about the rules including P and Others v SSHD & SSJ where the Supreme Court found that two aspects of the filtering regime breached Article 8 of the European Convention on Human Rights:
- Multiple convictions (i.e. where no matter what the offences were, and no matter how long ago they were, simply because there was more than one offence they would all be automatically disclosed); and
- Childhood cautions
As a result, the government has made changes to the filtering rules which came into force on 28 November 2020.
Under the new rules, standard and enhanced DBS certificates will no long automatically disclose warnings, reprimands and youth cautions and, all spent convictions where the individual has more than one conviction, provided the offence is eligible and didn’t lead to a suspended or actual prison sentence. This is because all convictions resulting in a custodial sentence will always be disclosed.
What does this mean for employers in England and Wales?
The changes to filtering rules affect the end of the DBS processing stages. If a certificate was created before 28 November 2020 then the previous filtering rules will apply. If a certificate is created after this date, then the new filtering rules will apply.
The three key areas for employers to consider are:
You may need to update your recruitment processes. Any application forms for positions that are eligible for a standard or enhanced DBS checks will need to correctly reflect the new position. The government has published further guidance to help employers ensure their recruitment processes are up to date. This suggests that you ask 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)?
The guidance also encourages employers to include the following paragraphs in their standard 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.'
'Guidance about whether a conviction or caution should be disclosed can be found on the Ministry of Justice website.'
If you are in the middle of a recruitment process, with applicants currently being considered for a role/s, you shouldn't ask them to provide an old DBS certificate as it may disclose information you no longer need to know. We understand that the new rules won't automatically be applied on the DBS update service, and so applicants using that service will need to request a new check.
If an applicant discloses a criminal record in conjunction with a current job application, you should check whether you are legally obliged to ignore it in accordance with the new rules.
We recommend that you review the records of existing staff with criminal records and amend or remove any information which is filtered under the new rules. This will minimise the risk that you will take decisions based on out of date information. Existing staff have the right to have out of date information erased. If you fail to make the necessary changes this could result in a GDPR breach (and/or potentially a potential claim for damages).
Updates to policies/training
You may also need to update your policies and make sure relevant staff are made aware of/receive training on the new rule changes.
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