As the Disclosure and Barring Service (DBS) conduct basic, standard and enhanced DBS checks, employers are able to easily determine the suitability of prospective candidates in relation to a wide range of jobs.
However, on 29 May 2013, a process known as filtering was introduced, which impacts upon which cautions and convictions are actually disclosed within the checks. Filtering detects particular cautions and convictions, which it classifies as protected, and ensures that they are not disclosed within the DBS check.
Any past offences and warnings which are protected and took place a sufficient number of years ago will not be included on the DBS certificate and shall not impact on a candidate’s chances of obtaining the role.
How Does DBS Filtering Impact Employers?
If there are cautions and convictions that occurred a long time ago and are of a minor nature, employers will not be able to let such situations impact their recruitment decision-making. These cautions and convictions are not permitted to be regarded as a contributing factor within the hiring process.
Employers also cannot ask any applicants to disclose certain convictions or cautions. The employer is only seen as being legally entitled to be informed of any past concerns that are not protected by filtering.
An enhanced or standard DBS check can still be requested by an employer, provided the relevant job title falls within the remit of the Rehabilitation of Offenders Act 1974 (Exceptions) and where applicable the Police Act Regulations (as amended). However, with both enhanced and standard DBS checks, employers can only question applicants about any cautions and convictions that are not protected via filtering.
If an employer learns of a caution or conviction that would not otherwise have been disclosed due to filtering and uses the information they have acquired to influence the hiring decision, they are acting unlawfully. This is stated within the Rehabilitation of Offenders Act 1974.
It is therefore advisable for employers to keep a written record of the justifications for hiring decisions, especially rejections. Include whether any spent convictions and cautions played a part in the decision-making and, if so, why it was appropriate to bear them in mind during the hiring process.
According to legislation, a DBS certificate will always include the following, where applicable:
- cautions relating to an offence from a list agreed by Parliament
- cautions given to an adult less than 6 years ago
- cautions given to a minor less than 2 years ago
- convictions relating to an offence from a prescribed list
- where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
- convictions that resulted in a custodial sentence (regardless of whether served)
- convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
- convictions of a minor which did not result in a custodial sentence, given less than 5.5 years ago
Gov.uk has provided a comprehensive list of offences which will not be filtered from a DBS check.
Are There Any Positions Where Filtering Does Not Apply?
Simply put, yes. While this is rare, there are nevertheless a small set of specific job titles that enable any cautions or convictions by the individual to be considered. These positions are not subject to the DBS process and include police vetting and firearms licence applications.
For further guidance regarding the DBS filtering process or how to arrange a DBS check for your prospective employees, please contact us today.