Changes to DBS from 28th November 2020

Changes to the DBS Filtering Rules come into place on the 28th November 2020

Filtering is the term used to describe the process that identifies which criminal records will be 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. This process did not apply if the person had more than one conviction, however minor the offences.

The changes come as a result of a number of legal challenges, including a Supreme Court judgment in P and Others v SSHD & SSJ where it was found that two aspects of the filtering regime where disproportionate and breached Article 8 of the European Convention on Human Rights:

1. Multiple convictions – which meant that 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
2. Childhood cautions

The changes made by the government under the new rules which came into force on 28 November 2020 are:

• warnings, reprimands and youth cautions will no longer be automatically disclosed on a DBS certificate
• the multiple conviction rule has been removed, meaning that if an individual has more than one conviction, regardless of offence type or time passed, each conviction will be considered against the remaining rules individually, rather than all being automatically 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:

Hiring practices

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, you should not ask applicants to provide an old DBS certificate as it may disclose information you no longer need to know. The new rules won’t automatically be applied on the DBS update service, and therefore applicants 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.

Information management and GDPR

If you employ existing staff with criminal records, we recommend that you review the 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 a potential claim for damages).

Updates to policies and training

You may also need to update your policies and make sure relevant staff are made aware of and receive training on the new rule changes.

How We Can Help

Please contact us for support and advice on your safer recruitment practices. We have updated our Safer Recruitment Application Form and will be sending it out to all clients who have previously used this.  If you have not used our Safer Recruitment Application form before and would like a copy please contact us at hrsupport@commissioninghr.co.uk