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Youth warnings, reprimands and cautions will no longer be automatically disclosed to employers who require Disclosure and Barring Service (DBS) certificates from 28 November.
The changes, which come as a result of a Supreme Court judgment that found some elements of the existing filtering rules for Standard and Enhanced DBS checks were disproportionate, are intended to make it easier for people with certain convictions to find employment.
The multiple conviction rule will also be 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 on the certificate.
Christopher Stacey, co-director of Unlock – a group that campaigns for people with convictions – welcomed the changes, but said they did not go far enough to improve access to work for some people with childhood convictions.
“The changes coming in on 28 November are a crucial first step towards achieving a fair system that takes a more balanced approach towards disclosing criminal records,” he said. “However, we are still left with a criminal records system where many people with old and minor criminal records are shut out of jobs that they are qualified to do.
“We found that over a five-year period, 380,000 checks contained childhood convictions, with 2,795 checks including convictions from children aged just ten. Many of these childhood convictions will continue to be disclosed despite these changes.
“Reviews by the Law Commission, Justice Select Committee, former Chair of the Youth Justice Board Charlie Taylor and David Lammy MP have all stressed the need to look at the wider disclosure system. The government’s plan for jobs should include a wider review of the criminal records disclosure system to ensure all law-abiding people with criminal records are able to move on into employment and contribute to our economic recovery.”
New DBS guidance advises organisations to update their recruitment processes in light of the changes and check the Ministry of Justice website for which convictions or cautions should be disclosed by job candidates.
It suggests that employers ask job candidates: “Do you have any convictions or cautions (excluding youth cautions, reprimands or warnings) that are not ‘protected’ as defined by the Ministry of Justice?”
It also urged employers to include the following paragraph in their standard job application forms: “The amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) provides 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.”
The guidance says: “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.
“Employers should conduct a case-by-case analysis of any convictions and cautions disclosed and consider how, if at all, they are relevant to the position sought. It would be advisable for the employer to keep records of the reasons for any employment decision (and in particular rejections), including whether any convictions or cautions were taken into account and, if so, why.”
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