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A school’s obligations
The Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) introduces various obligations on certain employers to enable them to check the suitability of employees or volunteers who are applying to work with children or vulnerable adults.
The following five types of activity are potentially regulated activity relating to children:
- Teaching, training or instruction.
- Care for or supervision of children.
- Advice or guidance.
- Moderation of a public internet service wholly or mainly for children.
- Driving a vehicle for the sole purpose of conveying children.
Inevitably, a majority of roles within a school therefore involve “regulated activity”. This has the effect that schools fall within the definition of a “Regulated Activity Provider” (RAP), being someone who is responsible for the management or control of regulated activity, which they make arrangements for others to engage in. The type of role affected by the SVGA 2006 may include teachers, supply teachers, classroom assistants, caretakers, cleaners, catering and transport staff, receptionists and administrative staff, crèche and nursery workers, registered childminders and youth workers.
The SVGA 2006 places specific obligations on RAPs to check whether an individual has been barred from working with children. An individual’s barred status is currently available (i) as part of an enhanced criminal record (DBS) check; or (ii) through the DBS online Update Service, if the individual has subscribed.
The employer must, in respect of prospective teachers or any other person working at the school and having regular contact with children, obtain an enhanced DBS check together with a request to check the children’s barred list before or as soon as practicable after their appointment. A DBS check not only gives information on whether the individual is barred, but it also sets out information on the individual’s previous criminal convictions.
What criminal convictions can be taken into account?
Prior to 2013, a standard or enhanced DBS certificate would contain all of an individual’s convictions and cautions, whether current or spent and whatever the nature of the offence.
On 29 May 2013, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) came into force. The Rehabilitation of Offenders Act 1974 (ROA) sets out in legislation rehabilitation periods, and provides that individuals do not have to disclose spent convictions unless they are covered in the Rehabilitations of Offenders Act (Exceptions) Order 1975 (Order).
This Order sets out the circumstances in which an individual can be asked about spent convictions and when an employer can consider these. This includes “any employment as a teacher in a school or establishment for further education and any other employment which is carried out wholly or partly within the precincts of a school or establishment for further education, being employment which is of such a kind as to enable the holder to have access to persons under the age of 18 in attendance at the school or establishment for further education in the course of his normal duties.”
Therefore, teaching applicants would still be required to disclose spent convictions. They would not, however, be required to disclose protected convictions and protected cautions. If the applicant’s offences fall within the protected convictions or protected cautions categories, the school is not legally entitled to ask about them or take them into account to dismiss an employee.
Until recently, only the following convictions fell within the remit of a protection conviction:
- A conviction received by a person aged under 18 at the time of the offence resulting in a non-custodial sentence (this would be removed from a DBS certificate after five and a half years).
- A conviction received as an adult resulting in a non-custodial sentence (this would be removed from a DBS certificate after 11 years).
Certain specified offences would never be eligible for filtering, including violent and sexual offences. If a person had committed more than one offence, then details of all of their convictions would always be disclosed.
The following cautions fell within the remit of a protected caution:
- A caution administered to a person aged under 18 at the time of the offence (this would not be disclosed after two years).
- A caution administered to an adult (this would be removed after six years).
A caution would not be removed if it related to an offence specified as never being eligible for filtering.
November 2020 developments
The above “filtering mechanism” (in relation to protected convictions and protected cautions) had been widely criticised for years, predominantly on the basis that the multiple conviction rule under which previous offences were disclosed caused “embarrassment and humiliation” in various cases. After a further challenge, the Supreme Court held in R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3 that the revised approach was inadequate and required further amendment.
On 9 July 2020, the Government announced several proposed changes to the criminal records disclosure regime and laid draft regulations removing, in most cases, the requirement for automatic disclosure and self-disclosure of youth cautions, reprimands and warnings, as well as removing the “multiple conviction” rule. These changes came into force on 28 November 2020.
The effect of this is that the definition of “protected caution” and “protected conviction” are amended and essentially widened. Under the new disclosure regime, a “protected caution” will include all those given where a person was under 18 at the time of the caution. The “multiple conviction rule” has also been removed. The effect of these changes is that youth cautions and multiple convictions no longer have to be disclosed when a person is asked about them, and will no longer be subject to mandatory disclosure in criminal records certificates. For the avoidance of doubt, the multiple convictions rule applies only to convictions that would fall within the scope of a “protected conviction”. The DBS certificate will no longer automatically include these types of protected convictions or cautions. 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.
What does this mean for employers?
In the light of the revised scheme, the DBS has issued a Filtering Guide which advises employers who use standard job application forms to include the following information/questions:
- The amendments to the Exceptions Order 1975 (2013) provide that certain spent convictions and cautions are ‘protected’ and are not subject to disclosure to employers, and cannot be taken into account. Guidance and criteria on the filtering of these cautions and convictions can be found on the Disclosure and Barring Service website.
- Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974? (Y/N)?
- 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? (Y/N)?
- 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. Guidance about whether a conviction or caution should be disclosed can be found on the Ministry of Justice website
Employers should also signpost candidates to Nacro or Unlock, which are charities that help individuals understand the amount of information on their criminal record history they need to disclose in job applications.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such.
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