FAQ Supreme Court webinar

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This is an FAQ page published to help provide clarity on the DBS filtering rules as of 28 November 2020 and answer the most immediate questions employers may have. Some are answers to questions asked in our webinar on the Supreme Court judgment on criminal record disclosure, from August 2020.

What changes are being made to the DBS filtering rules? What offences will now not be shared in a standard/enhanced disclosure certificate?

Two elements of the current filtering system have changed in light of the Supreme Court's judgement on criminal record disclosure. 

Under the new filtering rules, which will apply to standard and enhanced disclosures:

  • 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.

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

More information about protected convictions and cautions can be found in the NHS Employers criminal record check standard.

What are employers now legally permitted to ask candidates to self-disclose as part of the recruitment process?

Under the new criminal record disclosure system, youth cautions, youth conditional cautions, reprimands and final warnings are filtered automatically. Employers should not ask applicants to declare this information when seeking a self declaration. All unspent conditional cautions and unspent convictions must be disclosed and spent cautions and convictions must be disclosed if they meet the circumstances as detailed on page 10 of Ministry of Justice guidance.

Employers should update their recruitment processes to reflect the changes in the filtering rules so that the right questions are asked, and candidates give the right (legally accurate) answer.

We suggest that you use the following questions as a template for your recruitment processes relating to positions that are eligible for a standard or enhanced DBS check:

  1. Do you have any criminal convictions that are not protected (i.e. eligible for filtering) under the Rehabilitation of Offenders Act 1974 (Exceptions) Order (as amended)?
  2. Do you have any cautions, that are not protected (i.e. eligible for filtering) under the Rehabilitation of Offenders Act 1974 (Exceptions) Order (as amended)?

For recruitment relating to positions only eligible for a basic DBS check we suggest that you use the following questions as a template for your recruitment processes:

  1. Do you have any unspent convictions as outlined in the Rehabilitation of Offenders Act 1974?
  2. Do you have any unspent conditional cautions as outlined in the Rehabilitation of Offenders Act 1974?

Updated model self-declaration forms and supporting guidance are now available to download for our website and we continue to work with NHS Jobs to replicate the changes to the self-declaration questions on the NHS Jobs application form.

Do the new arrangements have implications for the data I am holding about a person's criminal record? What am I now legally required / entitled to hold? 

Is it important for employers to ensure they ask applicants the correct questions about their criminal record during the recruitment process, in line with the legal requirements. They must also signpost applicants to the guidance that is available to them to be able to answer these questions correctly. 

Having a local policy on the correct handling of sensitive personal data is essential to ensure the safe processing of information, in compliance with the Data Protection Act 2018 and the General Data Protection Regulation 2018 (GDPR) and the DBS code of practice. The code is designed to ensure that any criminal record information released is used fairly and is handled and stored appropriately. 

Queries about the retention of criminal record information can be directed to the DBS Data Protection Manager by emailing dataprotection@dbs.gsi.gov.uk. 

What should we do in instances where the DBS certificate doesn't reflect the information candidate has disclosed? 

The criminal justice system and criminal record disclosure regime can be complex and difficult to understand. Many applicants are confused about what their criminal record is and what they are required to disclose for employment purposes, so can genuinely make the mistake of incorrectly disclosing information or omitting relevant information. Employers should not automatically assume that an error in disclosure is intended to deceive. 

Discussions about discrepancies between information provided by the applicant and that declared as part of a DBS check, should be approached sensitively. Wherever possible, we recommend this includes a face to face meeting with the applicant, giving them opportunity to explain.

Employers should also signpost candidates Nacro or Unlock, charities that help individuals understand the amount of information on their criminal record history they need to disclose in job applications.

  • Nacro - Tel: 0300 123 1999, or email: helpline@nacro.org.uk
  • Unlock - Tel: 01634 247 350, email advice@unlock.org.uk

How should employers complete risk assessments and make confident decisions on risk and relevance?

The criminal record check is one part of an overall recruitment process. Employers should ensure they complete each of the necessary pre-employment checks as thoroughly as possible. It is important to weigh up any recruitment decision as a consequence of assessing all of this information.

If a candidate discloses a criminal record, or a DBS certificate shows a candidate's criminal history, it is important for employers to provide the applicant with the opportunity to provide circumstances and context around any convictions declared. NHS Employers' Positive disclosure discussion aid can help employers to do this.

Nacro's Recruiting safely and fairly guide can also help you to do this.

Where can a candidate seek support from if they have any questions about completing the self-declaration form?

If an individual is unsure about what offences might need to be declared in response to the self-declaration questions, you can advise them to seek advice from one of the following bodies:

  • Nacro - Tel: 0300 123 1999, or email: helpline@nacro.org.uk
  • Unlock - Tel: 01634 247 350, email advice@unlock.org.uk

How can we safely handle the information disclosed on a DBS certificate?

Criminal record information (including the self-declaration, risk assessment and a copy of the DBS certificate) is sensitive personal data and therefore employers must comply with the Data Protection Act 2018 and the General Data Protection Regulation 2018 and the DBS code of practice. The code is designed to ensure that any criminal record information released is used fairly and is handled and stored appropriately.

Information should be kept securely, in lockable, non-portable storage containers with access strictly controlled and limited to those who are entitled to see it as part of their duties. Once a decision has been made on whether to appoint or not, the disclosure certificate should be kept in line with the DBS code of practice and data protection laws. The DBS advise holding on to criminal record information for six months after the recruitment phase, to ensure resolution of any disputes or complaints. If you appoint the individual, then it may be necessary for you to retain information for a longer period in order to meet any safeguarding or auditing requirements. Queries about the retention of criminal record information can be directed to the DBS data protection manager by emailing dataprotection@dbs.gsi.gov.uk. 

Having a local policy on the correct handling of sensitive personal data will be important to ensure the safe processing of information, in compliance with data protection, human rights and other employment law.

Is there a role for the DBS to provide guidance to offenders at the time of conviction re: what and when to disclose? 

The DBS certainly has a role to play in ensuring comprehensive guidance on the rights and responsibilities when disclosing criminal records is publicly available and capable of being understood by individuals - with the help of legal or professional advice if necessary. 

The Ministry of Justice, courts and police also have a primary role in making sure offenders are aware of, and understand, the implications of having a criminal record, with the help of legal and professional advice where necessary.

Are there any changes that can be made on NHS Jobs to make this easier for applicants?

NHS BSA is already making some significant changes to the NHS Jobs site with a view to improving the applicant experience more generally. 

NHS Employers will continue to support them in understanding any implications around any changes to the criminal record regime so they can consider this as part of any developments they are undertaking on the standard NHS application form.

I may have missed this, but are custodial sentences still always going to be disclosed? 

Yes. Under the Government's proposed changes to DBS filtering rules for standard and enhanced certificates, custodial sentences will always be disclosed. 

Do you foresee these changes impacting the way people are sentenced? For example, affray conviction re: reprimand

In July 2019, the government announced it plans to reform the Rehabilitation of Offenders Act 1974 by reducing the length of time people with convictions need to disclose short custodial sentences and community sentences to employers. They will outline any proposed changes in a sentencing White Paper to be published in Autumn 2020. We do not foresee that any changes will impact the way that people are sentenced as the criminal record disclosure regime operates separately to the sentencing regime.  

There is not a mention of regrading drink driving bans on the filtering list, could you confirm if they qualify for filtering?

Conviction(s) for drink driving would qualify for filtering as long as all other provisions have been met.

Convictions for causing death by drink driving would NOT be filtered. 

How are employers in sectors outside the NHS responding to model declaration forms that are used in the NHS?

The Supreme Court ruling will affect employers in all sectors, meaning they will have responsibility to review all guidance, policies, and practices to align with the new ruling.

The guidance issued by NHS Employers is tailored specifically to meet to requirements that apply to NHS organisations in England.

 

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