By Katie Dillon on 11 Mar 2021
Rehabilitation of Offenders Act 1974 – 2020 amendments
You may well be aware that there have been some significant changes in legislation that will have an impact on your assessment of individuals applying for positions in schools.
The amendments are complex and school leaders must understand the changes in legislation and how they will impact on school practice with regards to recruitment and selection. You are still required to state that your organisation is committed to safeguarding and that applicants will be required to disclose relevant criminal history if shortlisted.
The legislative changes were implemented following a Supreme Court Judgement in 2019, amendments to the Rehabilitation of Offenders Act (ROA) 1974 which came into effect on the 28th November 2020; the changes have been described as “the most significant change to the criminal record regime since 1974”.
To give some background, the Rehabilitation of Offenders Act 1974 was designed to provide a “clean slate” to individuals with a criminal history by giving people with spent convictions and cautions the right not to disclose them to potential employers. An exceptions order was granted in 1975 which gave some employers the right to know about convictions (whether spent or unspent) which may impact on an applicant’s suitability to work in a particular field or carry out particular work. The exemptions order applies to schools, meaning that roles in schools are “exempt” from the Rehabilitation of Offenders Act 1974. In simple terms this means that schools have a right to know about the criminal history of job applicants and can take this into account when making recruitment decisions.
What are the significant changes?
The significant updates that came into effect on the 28 November 2020 mean that:
- Youth warnings, reprimands and cautions will no longer be automatically disclosed on a DBS certificate;
- The multiple conviction rule has been removed and each conviction will be considered against the remaining rule individually, this is instead of all the convictions being automatically disclosed.
There will still be “specified offences” which have been agreed by Parliament and these will always be disclosed on both a Standard and Enhanced DBS certificate – click here for the full list of offences
What does this mean for schools?
Given the key principles of the judgement employers must:
- Request self-disclosure information after a candidate has been shortlisted but before interview;
- Ensure that questions for applications with regards to self-disclosure are targeted and proportionate – schools can only ask an individual to provide details of convictions and cautions that they are legally entitled to know about;
- Take steps to ensure that:
a) applicants know what they are required to disclose when they are applying for a role;
b) applicants understand their disclosure rights and responsibilities and;
c) applicants have access to publicly available guidance and support from professional advisers.
- Not take into account any disclosure made by an applicant that would have been filtered from a DBS disclosure and such information must be destroyed from all paperwork.
Key points to remember:
- Employers must notify potential applicants at the advert stage that the post they are applying for is exempt from the Rehabilitation of Offenders Act 1974 and what this means (i.e. a self-disclosure and an enhanced DBS check are required)
- If an employer takes into account a conviction or caution that would have been filtered from a DBS check, 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.
This is only one part of the recruitment jigsaw but a significant change and therefore urge you to speak to our specialist HR Advisers if you require any support about this complex issue.
To support you further we provide accredited Safer Recruitment Training by experienced Safer Recruitment Trainers on a termly basis to ensure that you are compliant with the safer recruitment requirements set out in the Keeping Children Safe in Education ‘KCSIE’ guidance September 2020. That you have the appropriate procedures in place to ensure your recruitment processes are robust, open and transparent.
We are also introducing a new accredited Safer Recruitment Refresher course (1/2 Day) in Summer Term 2021 which will provide a detailed overview of the amendments to the Rehabilitation of Offenders Act 1974, the impact this will have on recruitment practices and how best to implement the required changes in your establishment.
Our accredited Trainers can also provide bespoke training to your Governors/trustees, SLT and/or Safeguarding Staff specifically in relation to the amendments to the Rehabilitation of Offenders Act 1974 or the requirements of safeguarding checks that must be undertaken when recruiting to your establishment.
Please don’t hesitate to contact us on our dedicated Helpline 0161 276 0153 / 0844 967 1112. Or email us via email@example.com if you wish to discuss this in more detail.