Updated guidance on DBS filtering rules – what has changed?

The DBS filtering rules were introduced in May 2013 and the purpose was to exclude from DBS certificates certain information relating to minor criminal offences in line with the relevant criteria. The rules on “filtering” have recently been updated and the relevant details are set out in this note.

What is filtering?

Filtering is the term used to describe the process by which criminal records are disclosed on a Standard or Enhanced DBS certificate. The rules were introduced in May 2013 when amendments were made to legislation that affected both what an employer can ask an individual in relation to convictions (for example, a self-declaration on an application form asking ‘do you have any convictions’), and what is disclosed on a Standard or Enhanced DBS certificate. As a result of the filtering rules, certain old or minor offences may not be disclosed on certificates, which are known as ‘protected’ offences. For example, if an individual received a caution over the age of 18 that would be filtered out after 6 years from the date of the caution.

Key changes

The new legislation will remove the requirement for automatic disclosure of youth cautions, reprimands and warnings. It will also remove the ‘multiple conviction’ rule, which requires the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence. Instead, each individual conviction will be assessed against the appropriate rules.

The new rules will be applied to all certificates processed from 28 November 2020 onwards. Any certificate produced prior to this date will be in line with the previous rules.

This move comes after the government’s consideration of a recent Supreme Court decision relating to the current DBS regime. Against this backdrop, the changes aim to balance the needs of protecting people, especially the most vulnerable and children, against the need to ensure that those offenders, who have reformed, are not disproportionately hindered by their previous wrongdoing.

The changes will be of particular benefit to those with historic childhood cautions and will build on the government’s commitment to increase employment for ex-offenders.

Convictions and adult cautions for offences specified on a list of serious offences, which received a custodial sentence, are recent or unspent will continue to be disclosed under other rules.

What this means for employers?

Employers may now wish to update their recruitment processes to reflect the updated rules. Any job application forms in relation to positions that are eligible for a Standard or Enhanced DBS certificate will need to reflect the updated filtering rules. Should you need any assistance, the employment team at Stone King will be able to help.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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