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The law regarding the use of criminal record checks by employers is complex.
For many, the question of what employers can and cannot do when it comes to criminal record checks – and, perhaps more importantly, how information revealed in such checks can be used – is one they aren’t sure how to answer.
But just as many think of the law on criminal records applying only to job applicants, many of the principles apply equally to individuals already in employment.
Two ways exist in which an employer can get information about a person’s criminal record history. They can seek a voluntary disclosure from the candidate about his or her criminal convictions. Alternatively, employers can seek an official criminal record check through the Disclosure and Barring Service (DBS), which they either do directly or through a registered body.
The employer cannot ask an individual to obtain his or her criminal record history by means of a subject access request, and doing so is a criminal offence.
Relying on voluntary disclosure does, however, have its problems. An individual may dishonestly claim to have a clean record or fail to disclose a spent conviction (an old conviction usually not required to be disclosed) when they are applying for a job where they are required to disclose them – purely because they believe they don’t have to.
Given the importance of ensuring that people with certain convictions do not undertake certain types of work, voluntary disclosure should not be relied on when the role involves work with children, vulnerable adults or where the work being applied for is listed in the Rehabilitation of Offenders Act 1974.
While the Rehabilitation of Offenders Act prohibits employers from seeking disclosure of “spent” convictions, an Exceptions Order sets out those circumstances in which employers can ask for disclosure of spent convictions. These include:
- certain professions such as medics, lawyers, accountants and opticians
- those employed to uphold the law, such as judges and police officers
- certain regulated occupations, such as financial services
- those who work with children, provide care services to vulnerable adults or provide health services
- those who could pose a risk to national security
Types of checks
Different types of DBS check exist:
- A basic check – contains details of unspent convictions, and conditional and unconditional cautions.
- A standard check – shows both spent and unspent convictions, cautions, reprimands and warnings.
- An enhanced check – shows the same information as a standard check plus any information held by local police that is considered relevant to the role.
Compliance with data protection law
As with other sensitive information, employers should ensure information relating to any DBS checks is treated and stored confidentially.
The Information Commissioner’s Office recommends that employers make clear early in the recruitment process that vetting will take place, how it will be conducted and then leave the vetting until pre-employment stage (rather than vetting all shortlisted applicants).
Dealing with information revealed on DBS checks
For some jobs, having a certain criminal record history will preclude a person from being employed for that job. Additionally, sector-specific regulations or guidance could influence the weight to be attached to criminal records.
In cases where the employer is not bound by sector-specific guidance or regulations, good practice is for employers to consider carefully before deciding whether to refuse to employ, or potentially dismiss, an employee due to convictions. In particular, they should note:
- whether the conviction is relevant to the position in question
- the seriousness of the offence
- the time since the offence
- whether a pattern of offending or other relevant matters exists
- whether the applicant’s circumstances have changed since the offending behaviour
- the circumstances surrounding the offence and the explanation offered by the individual
Furthermore, employers should not have a blanket ban on employing people with criminal convictions. Instead, employers should consider other factors as well (for example, any reference received in the recruitment process may, in fact, be a better indicator of suitability) or perhaps consider using probationary periods to assess suitability first-hand unless the role and industry regulation preclude employment due to certain convictions.
But what of those already employed? Here, slightly more care is needed when dealing with criminal records disclosures.
Generally, if a disclosure is received before the employee has accrued sufficient service to bring an unfair dismissal claim (currently two years) and the employer wishes to terminate his or her employment, dismissal on notice will be relatively risk-free (provided the notice does not take the employee beyond the two-year qualification period).
However, for employees who have already accrued unfair dismissal rights, an employer will need to tread more carefully to ensure any dismissal falls within one of the fair reasons for dismissal.
Employers would also need to ensure the process followed is fair and that the decision to dismiss is within the range of reasonable response. This will often depend on the facts in which the criminal record was disclosed and its relevance to the role.
If it transpires that an employee has lied about his or her criminal record, an employer may be able to argue that a breakdown in trust and confidence has occurred between the parties, which may justify a dismissal for “some other substantial reason” or conduct.
On the other hand, if the employee concerned has shown himself or herself to be an otherwise trustworthy and competent employee (especially if over a number of years) it may be difficult to show that a decision to dismiss was within the range of reasonable responses.
If an employee acquires a criminal conviction while he or she is employed, this may call into question his or her suitability for the role (depending, of course, on the nature of the conviction), which may also justify dismissal.
It is important for employers to consider convictions when they are required by law to do so. That said, employers shouldn’t generally focus on convictions as a blanket policy for all roles and should only take disciplinary when it is really necessary.