Changed rules for disclosure of prior criminal records now in force
Employers seeking to make use of prior criminal records as part of their recruitment and selection process need to be aware of recent rule changes which mean records of childhood police cautions will no longer be disclosed. The changes also mean the records of persons with more than one conviction will no longer be automatically disclosed.
While the use of prior criminal records is an established component of the recruitment and selection process for roles where this is warranted by the inherent role and responsibilities of an individual position, many employers have been misusing this information and improperly denying otherwise deserving candidates.
Such misuse was revealed by a Supreme Court ruling in January 2019 which found many applicants for positions had their fundamental human rights impacted ie the right to respect for family and private life. Subsequently, the body responsible for maintaining records, the Disclosure and Barring Service of the Ministry of Justice has reviewed the situation and amended their filtering rules – ie the rules for assessing which criminal records should be disclosed on a Standard or Enhanced DBS certificate. These rules were updated on 28th November 2020 as follows:
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.
Tips for employers arising from these changes
Remember, 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. As a result of the DBS rule change, employers may wish to consider updating their recruitment processes to reflect the changes in the filtering rules. Job application forms concerning positions eligible for a Standard or Enhanced DBS check will need to reflect the filtering rules so that:
employers ask the right questions, and
employees give the right (legally accurate) answer
We suggest that you use the following questions as a template for your own recruitment processes:
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)?”
Many of our clients have found NACRO provides advice and support, as well as training, to employers and organisations needing to access criminal record information as part of their recruitment and selection process.
Nacro’s Employers Criminal Record Guidance publication can be found here
For further details