Amended legislation means applicants no longer need to disclose cautions or multiple convictions

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Amended legislation means applicants no longer need to disclose cautions or multiple convictions

Amended legislation that came into force on 28 November 2020 has narrowed the ‘relevant matters’ that must be disclosed to employers in regard to a prospective employee’s criminal history.

Changes to the provisions of the Police Act 1997 – the UK’s criminal record disclosure legislation – mean that youth cautions, reprimands and warnings are no longer required to be automatically disclosed through standard and enhanced criminal record certificates by the Disclosure and Barring Service (DBS).

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In addition, the multiple conviction rulewhich requires the automatic disclosure of all convictions in cases where a person has more than one conviction, regardless of the nature of their offence or sentence – has been revoked.

The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 was initially introduced in July 2020 and debated in the House of Commons and the House of Lords before becoming law in November.

Associated draft legislation, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020, seeks to further amend the disclosure scheme for certain sensitive roles.

The changes made under the 2020 Act will have particular implications for schools, care homes and other organisations that deal with children and vulnerable adults, who rely on the disclosures made in DBS Certificates to make suitable and safe hiring decisions. In 2018/19, 5.8 million such certificates were issued.

While some employers may be concerned about these changes, particularly in relation to roles requiring a high degree of public trust, the government says the decision comes after “careful consideration” of a Supreme Court judgment, which held that the multiple conviction rule, and the requirement to disclose reprimands and warnings administered to young offenders, was disproportionate and incompatible with Article 8 of the European Convention on Human Rights (the right to a private life).

A news article published on the government website says that relaxing the current disclosure regime forms part of its plans to increase employment for ex-offenders and “strikes a balance between the needs of protecting people ensuring those who have reformed after committing offences are not disproportionately hindered by previous wrongdoing”.

Convictions and cautions for more serious offences – specifically those that are recent, unspent or resulted in a custodial sentence – will still be divulged to employers.

What happens now?

In practical terms, HR professionals, school leaders and other hiring managers will notice a difference in the results shown on DBS Certificates, which will no longer contain any information that is deemed irrelevant or unnecessary to disclose to prospective employers.

Responding to the changes, Jane Hallas, Head of the Education and Charities Team at Ellis Whittam, says: “New guidance has been issued by the government and employers should review and update their Safer Recruitment policies and procedures.

“Employers should ask applicants who are applying for roles listed on the ROA Exceptions Order which are subject to standard or enhanced DBS checks the following questions:

  1. Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974?
  2. 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?”

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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