DBS recommends employers change recruitment questions about convictions and cautions to reflect these new rules.
We reported in February 2019 on the Supreme Court's decision that the rules on disclosing multiple convictions and youth cautions in a standard or enhanced Disclosure and Barring Service (DBS) check were disproportionate and incompatible with the European Convention on Human Rights. See our article, Should applicants for work with children or vulnerable adults have to disclose spent convictions?
Under the old rules, youth cautions, reprimands and warnings were required to be automatically disclosed on standard and enhanced DBS checks. There was also a rule which required the automatic disclosure of all convictions where an individual had more than one conviction, regardless of the nature of the offences or how long ago they took place.
The cases considered by the Supreme Court included an individual seeking work as a teaching assistant who was compelled by the multiple conviction rule to disclose her convictions for two petty offences long after they became “spent” under the Rehabilitation of Offenders Act 1974.
The new disclosure rules
With effect from 28 November 2020, the DBS will no longer automatically disclose multiple convictions or youth cautions, warnings or reprimands in a standard or enhanced DBS check.
Despite the changes to these rules, enhanced DBS checks may still include information relating to a protected caution or conviction where the police consider that the caution or conviction is “relevant to the workforce that the individual intends to work in”, for example because they consider that it may indicate a risk where the role includes work with children or vulnerable people. (For more information on the question of how the police decide what information is relevant, please see our coverage of the case of R (on the application of AR) v Chief Constable of Greater Manchester Police and another in our September 2018 Employment Law Bulletin.) Where there are multiple convictions, each individual conviction will be assessed against the appropriate rules to decide whether it should be disclosed.
Employers should check that their recruitment questions reflect these changes
DBS guidance on the new filtering rules has now been published to clarify these changes. The guidance includes template questions for recruitment processes and recommends that employers include the following information in 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.”
Originally Published by Wrigleys Solicitors, December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
