Colleges that fail to make necessary changes to their DBS check procedures could face a potential claim for damages, writes Joanne Moseley
If you are in the middle of recruiting new staff for your college, then you should know that you must not ask for a DBS certificate made before a date in late November. This is because of changes to DBS “filtering” rules.
Filtering describes the process that shows which criminal records are disclosed on a standard or enhanced DBS certificate. The rules have been in place since May 2013 and affect both what an employer can ask in relation to a person’s convictions and cautions and what is then disclosed.
The old 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 that exemption did not apply if the person had more than one conviction, however minor the offences. There have been a number of successful legal challenges to this.
As a result, the government has made changes. Under the new rules, standard and enhanced DBS certificates will no longer automatically disclose warnings, reprimands, youth convictions and all spent convictions, even where someone has more than one conviction.
That is provided the offence is eligible and did not lead to a suspended or actual prison sentence. All convictions resulting in a custodial sentence must be disclosed.
You should not ask them to provide an old DBS certificate as it may disclose information you no longer need to know
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 rules will apply. If a certificate is created after this date, then the new rules will apply.
So, if you are in the middle of a recruitment process for a new staff member, with applicants currently being considered for a role, you should not ask them to provide an old DBS certificate as it may disclose information you no longer need to know.
The three key areas for colleges to consider are:
1. Information management and GDPR
We recommend that your college reviews the records of existing staff with criminal records and amends or removes any information that is filtered under the new rules. This minimises the risk that you will take decisions based on out-of-date information!
Existing staff also have the right to have out-of-date information erased.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.
2. Hiring practices
You may need to update your recruitment processes. Any job application forms for positions that are eligible for a standard or enhanced DBS check will need to correctly reflect the new rules.
The government has published further guidance to help employers ensure that their recruitment processes are up to date. It suggests that you ask the following questions.
“Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974?”
“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?”
The guidance also encourages employers to include these specific paragraphs in their standard application forms:
“The amendments to the Rehabilitation of Offenders Act 1974 […] provide 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 a job 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.
3. Updates to policies and training
You may also need to update your policies and make sure relevant staff are made aware of and/or receive training on the rule changes.