Real Employment Law Advice

Restrictive Covenants

What you should know following recent changes and challenges to the disclosure system

I am often asked a question by employers as to whether they can request criminal record information from employees and if they can ask the employee to make a request for their own records, and following some recent cases on the subject of criminal records I thought that it would be helpful to provide you with some general information on this and an update on the way in which criminal record handling is going.

Why is this relevant?

There has been a recent judicial review of the criminal records disclosure system which has been upheld as incompatible with Article 8 of the European Convention of Human Rights, the right to respect of private and family life, home and correspondence.

The case was brought by several people who were applying for job roles which require an enhanced disclosure, where all previous convictions are disclosed on an application to the Disclosure and Barring Service (DBS). These job roles included the teaching profession and finance sector. 

The prospective employees in this case had been convicted of two or more minor offences several years previously.

The case follows previous challenges to the reasonableness of holding and disclosing criminal records of individuals for minor offences which took place many years ago. The outcome of the previous cases was the introduction by the UK government of a filtering scheme so that single convictions for non-violent, non-sexual offences that did not lead to a custodial or suspended sentence are filtered and not disclosed after 11 years (for adults) or 5 ½ years if the person was under 18 when the offence took place. As a result of this recent challenge further changes are going to be required to the filtering system.

The Facts

The first applicant, Mrs P aged 47, had been a teacher in the 90’s and had become very unwell with schizophrenia, as a result she found herself in circumstances in which she was homeless and stole a sandwich, for which she was given a caution, she then stole a book worth 99p and was bailed to appear at the Magistrates Court. She failed to turn up and was then charged with an offence relating to her failure to return when bailed. She was given a conditional discharge for both offences.

In recent years she has tried to work voluntarily in schools with a view to obtaining paid employment as a teaching assistant but owing to her conviction in the 90’s she has been unable to do so. Because Mrs P had two offences her convictions did not fall under the filtering system which has been applied in recent years.

The second applicant Mr A aged 51, was convicted of stealing a coat in 1981 when he was 17 years old and was fined £30. Less than a year later he was convicted of stealing a motor cycle and driving with no insurance and was sentenced to £50 fine and 24 hours attendance and an attendance centre.

As with Mrs P, because he had two convictions they would not be filtered from his record. He works as a finance director and was concerned that he may have to have an enhanced DBS check by the Financial Conduct Authority.

The Decision

The High Court allowed Mr A and Mrs P’s applications for judicial review on the basis that it was not proportionate for such convictions to continue to remain on their records and that it was contrary to Article 8.

When can you request that an employee disclose their criminal records?

Under the Rehabilitation of Offenders Act 1974 cautions or convictions do not have to be disclosed to prospective employers where they are ‘spent’.
There are different periods of time in which convictions and cautions can become ‘spent’ and when a person has re-offended in a specific period of time. Some examples:

1) if a person is imprisoned for over 30 months (2 ½ years) their conviction never becomes spent and must be disclosed at all times;

2) if a person is imprisoned for over 6 months’ but not more than 30 months (2 ½ years) their conviction (if 18 or over) becomes spent after 10 years;

3) if a person is given an absolute discharge then it will be spent after 6 months.

This means that unless an exception applies (see below) then you cannot refuse to employ someone or dismiss them, because they have a spent caution or conviction.

There are certain sectors or types of work where convictions do not become ‘spent’ and therefore must be disclosed at all times. These include working with children and vulnerable adults, working in the police or legal system and in some financial positions.

How can I obtain information about a prospective employee’s criminal record?

You can ask the applicant to disclose voluntarily or you can make an application to the Disclosure and Barring service, known as a DBS check (formerly CRB check).

There is nothing to prevent you from asking employees to voluntarily disclose their convictions and many employers include this question on their application forms or employee information forms after making a provisional offer of employment. However as stated above an employee will not be required and should not be asked to disclose any ‘spent’ convictions, unless your industry or the job role falls into one of the exceptions under the Rehabilitation of Offenders Act.

It should be noted that not all job roles are eligible for an official check through the DBS service.

When should I ask about convictions?

I recommend that you ask about convictions after you have chosen your candidate(s) when you are doing other checks such as references.

What about getting the applicant to make a Subject Access Request?

Some employers have tried to get round the restriction and limits on obtaining information from the Disclosure and Barring service by requesting that a candidate make their own subject access request for personal data under the Data Protection Act. This is known as an enforced subject access request and has been a criminal offence since March 2015.

Can I refuse to employ someone I know has a ‘spent’ conviction?

You cannot refuse to employ someone on the basis that they have a ‘spent’ conviction unless the job falls into one of the exceptions described above.

What is interesting is that whilst the Rehabilitation of Offenders Act 1974 prohibits an employer from refusing to employ someone with a spent conviction there is no specific penalty for breaching the prohibition.

My advice in this situation is to use common sense and not just write someone off with a previous conviction whether ‘spent’ or not. You should weigh up the circumstances, the role and their suitability for the position.

The position may be slightly different for an existing employee whom you find out has a ‘spent’ conviction and I would urge you to proceed with caution, and take advice, before dismissing an existing employee.

What action do you need to take?

  1. If your business is in an industry which requires enhanced disclosure of criminal records and you receive a record which has historic offences then you need to ensure that you act reasonably in the weight that you attach to these offences when deciding whether to proceed with the applicant.
  2. If you work in the financial services industry there are certain exceptions and therefore I recommend seeking advice when recruiting.
  3. If you would like to know more about DBS checks and whether your business would qualify to obtain them please contact me and I will be happy to discuss with you.

Case Name

R (on the applications of P and A) v Secretary of State for Justice and others – High Court

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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