Are you acting lawfully when asking job applicants about their criminal past?

CODE Green:

The Disclosure and Barring Service (DBS) has published guidance to help employers understand new restrictions placed on them when asking questions about, or taking account of, applicants ’ or employees’ criminal records https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/240164/Filtering_guidance_v1_5.pdf

Employers are generally entitled to ask applicants/employees about their criminal convictions or cautions that are not “spent” under the Rehabilitation of Offenders Act 1974 (ROA). For some positions –  e.g. certain professions like doctors or lawyers or certain positions such as those working with vulnerable children or adults – employers are entitled to request more detailed disclosure via a DBS Certificate, the new name for  the old CRB check. The DBS certificate contains information about convictions and cautions, even those that are “spent” under the ROA, including youth cautions, reprimands and warnings.

The new DBS guidance helps employers understand new rules that came into force on 29 May 2013. These new rules deal with what convictions, cautions, reprimands and other sanctions should be “filtered“, i.e. removed, from the DBS certificate having regard to such factors as the severity of the sanction, how long ago it was awarded, the age of the person receiving the sanction and the type of offence for which the sanction was issued. Sanctions imposed for some offences, such as many sexual and safeguarding offences, will remain indelible and incapable of removal from the DBS certificate.

Employers will act unlawfully where they take into account a sanction that ought to be filtered under the new rules. Therefore, the guidance recommends that employers should amend their application forms to say:

“Do you have any convictions, cautions, reprimands or final warning that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)”.

Where an employer is entitled to have regard to criminal sanctions when taking a decision about an applicant’s or employee’s employment it should follow existing advice and conduct a case by case analysis of the sanctions and consider how, if at all, they are relevant to the position sought or held.

If you have any queries about your recruitment processes with regard to criminal cautions and convictions please contact Morrisons Solicitors’ employment team, call 01737 854500 or email [email protected].


Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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