Our Blog

Criminal Records & Human Rights, the effect on employment

Tuesday, June 13th, 2017

Do you undertake criminal record checks on your staff? If so read on

In this blog, we will consider the following

  • Criminal record checks
  • Job applicants with convictions
  • Jobs where it is lawful to ask for details of spent convictions

There has recently been some court action challenging the requirement on job seekers to disclose to prospective employers less serious offences, or offences that were committed a long time ago or when the offender was a minor.

In 2013, the Government amended the criminal record checks scheme to allow the filtering out of single convictions for some offences.

Since 2013, single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence have been filtered out after 11 years (or after five years and six months if the offender was a minor at the time of the offence).

The changes were made after several cases in which individuals successfully argued that minor offences, or offences that they had committed in the distant past or when they were children, were preventing them from obtaining employment.

The case law culminated in a Supreme Court ruling that it was a human rights breach for the Disclosure and Barring Service (DBS) to lead to: an individual being unable to take a part-time role with a local football club over police warnings he received after he stole two bicycles when he was 11 years old; and a job applicant being prevented from working in the care sector because of a 2001 police caution for leaving a store with a packet of false nails for which she had not paid.

However, the amended rules provide that disclosure takes place when there is more than one conviction, regardless of the offence or circumstances.

This “multiple conviction rule” has been the subject of a further legal challenge.

Two individuals whose convictions were not filtered because they had committed more than one minor offence successfully challenged the revised scheme in a judicial review application in the High Court. So, it should be considered in this sort of circumstance whether the criminal record checks had been disproportionate. The purpose of the two-conviction rule is specifically (and legitimately) intended to target inclusion of those cases which reveal a pattern of offending behaviour. Where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers.

The problem is that it is not necessarily the case that two convictions do represent a pattern of offending behaviour: indeed, on very many occasions, they don’t.

The High Court has found that the revised criminal record checks scheme is incompatible with the right to respect for private life under the European Convention of Human Rights.

The Government challenged the High Court decision in the Court of Appeal and, at the application of the multiple conviction rule, The Court rejected the Government’s argument that a review mechanism for testing the proportionality of the disclosure in each case would not be feasible.

According to the Court of Appeal, it should be possible to introduce a filter that considers the nature of the offences and the length of time since convictions.

An alternative suggestion from the Court of Appeal was a mechanism for review in specific circumstances, like the process for removal from the sex offenders’ register.

So, what do you do?

Well if there is a need to check, because of the nature of the work your company and staff do, you can justify why you need to carry out this part of the process of employing staff

BUT if there is no justification for you to do these checks, you could get into hot water – if in doubt give us a ring.

Undoubtedly there will be cases where a job offer (made subject to a clear check) will have to be withdrawn, but as this article has noted, you should treat each case on its own merits – to follow a blanket policy to withdraw the job offer whenever you do not obtain a clear check may be challenged and you just may lose!