Deciding whether you have to disclose a caution is not such an easy task. It used to be very simple indeed as there was a time when the general rule was that it would not need to be disclosed save in some very limited circumstances. How things change.
Nowadays to decide whether to disclose a caution can be extremely difficult but there are cases where it is vital that you get this correct. When you disclose a caution there are risks to you and your family’s financial health. The main thrust of Government thinking nowadays is to stop many people who made a single mistake early in their life from working in some environments.
The present position is that some old and minor cautions are not subject to disclosure. Not only that but employers are not able to take an old and minor caution into account when making decisions about you. Easily said but difficult to police. Hence the importance of checking whether to disclose a caution.
There are very many specified offences that will remain subject to disclosure . This includes what are referred to as serious violent and sexual offences but in fact the list is much wider than that. Approaching 1,000 offences can be found on this list. The theory also is that this applies to posts concerned with safeguarding children and vulnerable adults; but it is wider than that.
The Disclosure and Barring Service has advised employers to include certain wording in forms asking for disclosure. The idea seems to be to assist those who need to decide whether to disclose a caution to come to the right decision. The wording is ‘Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) order 1975 (as amended in 2013). In a job application form where a DBS check is needed the wording needs to reflect these filtering changes so that the employer asks the right question and the employee has the greater chance of giving the right (legally accurate) answer. Many organisations are slow to follow advice and amend their forms, especially where it is only a recommendation.
The DBS is filtering out protected cautions so that they do not appear in a check going forward. So far as cautions are concerned what needs to be filtered are those that are not on the listed offences and were given:-
- 2yrs or more ago for someone who was under 18 yrs of age at the time given
- 6yrs or more ago for someone who was over 17yrs of age at the time given.
If you are unsure how you are affected by a caution you may contact us for advice on a fixed fee basis. We can confirm that fee when we know the likely amount of paperwork involved. Contact Daniel Bonich or email our team using the address below.