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It has recently been reported that the Home Secretary, Sajit Javid, is considering reviewing the rules that allow employers to be alerted to the criminal history of prospective applicants. This a significant issue for both employers and employees with the former keen to properly scrutinize the character of prospective employees and the latter often concerned to avoid the disclosure of historical transgressions which disadvantage them in the labour market.

Current Law

The Rehabilitation of Offenders Act 1974 introduced the concept of “spent” convictions which placed a time limit on the requirement to declare criminal records to employers. Subject to certain exceptions spent convictions do not need to be disclosed to employers. Under the Act, depending on the offence, convictions can be spent by between 1 and 7 years. The Rehabilitation of Offenders Act 1974 (Exceptions) Order (SI 1975/1023) allows employers access to information about spent convictions and cautions where the applicant is applying for regulated employment and employment in which higher levels of trust is required such as professionals, those working within medical services, with children or vulnerable adults through the government’s disclosure services. In Scotland this body is Disclosure Scotland, in England it is DBS, and these disclosure schemes are governed by the Police Act 1997. Currently, full criminal history will be revealed if a person has more than one conviction of any sort no matter how much time has passed, even if the crimes were committed when the person was under the age of 18.

A ‘basic’ level check on a criminal record can be obtained by any individual applicant which allows some control over the information disclosed. Regulated employment requires ‘standard’ or ‘enhanced’ level checks by disclosure services which can only be applied for by employers within regulated sectors.

Earlier this year the government appealed a decision in a human rights case (Gallagher's Application for Judicial Review, Re R. (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3) which had been successfully pursued by three of individuals with minor past convictions who argued that the current system had detrimentally impacted their lives as they had struggled with obtaining employment. The relevant crimes committed included shoplifting a sandwich and driving without a seatbelt. The Government argued that the revised statutory schemes were compatible with European Convention on Human Rights (ECHR). The Supreme Court rejected this appeal, upholding a declaration of incompatibility of the current system with Article 8 of the ECHR (a right to respect for private and family life) made by the Court of Appeal and High Court. It was held that the current system was ‘disproportionate’ in two respects, firstly, as a result of the multiple convictions rule (that full criminal history is automatically revealed if a person has more than one conviction of any sort) and secondly, the fact that warnings and reprimands administered to young offenders were disclosed by disclosure checks. This ruling has prompted discussions on the topic by the Home Office.

Home Secretary’s Proposal

The Home Secretary has indicated that, in the light of these developments, the rules governing pre-employment disclosures should be reconsidered. The review would focus on the removal of minor crimes (such as minor assaults, drug possessions, traffic offences and thefts) committed before the age of 25 from records meaning that they would no longer be disclosable.

Given that are 11 million people in the UK with criminal records it is possible that this change could offer a large number of people greater opportunities to obtain employment by removing the  possibility of having to disclose previous transgressions.  The charity, Unlock, have reported that over just a five year period, almost 1 million childhood offences (of over 30 years old) were disclosed to employers through standard and enhanced disclosure checks. Given the proven links between work and rehabilitation, it has been argued that such developments could have a significantly beneficial impact on society resulting in lower levels of re-offending and facilitating ex-criminals in becoming taxpayers. Further, Unlock has highlighted that with the uncertainty that Brexit brings, it is time to encourage jobseekers here in the UK to fill vacancies.

Scotland already has a slightly different approach to England and Wales.  Individuals have the right to apply to the court to remove spent convictions included in Schedule 8B of the 1997 Act (including convictions for breach of the peace, robbery and fraud etc) from their disclosure certificates. The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 has recently extended this right to include more serious offences listed in Schedule 8A. Although by introducing this right, Scotland has shown a move towards decreasing the number of ex-criminals who suffer a detriment by way of the disclosure system - the provisions allow only a right to apply to the court, meaning that applications may still be rejected.

Implications for Employers

It is clear that there is likely to be wider change across the UK as a whole with respect to the legal regime in respect of the disclosure of criminal histories to employers.

Regardless of any further developments the existing Information Commissioners Employment Practices Code should be born in mind by employers in order to ensure compliance with data protection law. In particular, the Code states that employers should only request information about an applicant’s criminal convictions to the extent that the information can be justified in terms of the role offered. Should the suggested change be made, employers would however have to  clear to prospective applicants that it is not necessary to disclose minor offences committed before the age of 25.

Further, it remains a criminal offence under section 184 of the Data Protection Act 2018 for employers to request further data by enforced subject access request beyond that revealed by basic disclosures as this would reveal ‘spent’ convictions under the Rehabilitation of Offenders Act 1974. If data on minor crimes committed before the age of 25 were to become unavailable to employers in enhanced checks, this information should equally not be requested by subject access request.

The recent decision made by the Supreme Court has highlighted that the current system can have a disproportionately negative impact on ex-offenders who are trying to enter employment, however, it clearly remains legitimate as a matter of public interest, to protect certain sectors from exposure to unsuitable employees specifically those working with vulnerable people. How far other employers are entitled to delve into the histories of job applicants for the purpose of recruitment decisions is a matter of debate. While the proposed measure would go some way to address this issue one  by  preventing  employers having access to full criminal records,  it has been argued that, quite simply, it is time for employers to reconsider attitudes to employing ex-offenders where appropriate. Instead, it has been suggested that employers should carry out a risk assessments relevant to the specific positions they are recruiting for. Nacro, a crime prevention charity, suggests considering factors such as the length of time since the offence, any pattern of offending and using other means by which to assess an applicant’s suitability, for example checking qualifications and taking up references in order to prevent unwarranted detrimental treatment.    Whether in law or good HR practice the direction of travel is clearly towards limiting the disclosure of minor and historical criminal records but the precise boundaries of the best approach are yet to clearly emerge and will undoubtedly continue to throw up hard cases for both employers and employees to grapple with.

If you would like to discuss any of the points raised above please contact a member of the Stronachs Employment Team.

Eric Gilligan, Partner and 

Rosie Allan, Trainee Solicitor

Chambers Leading Firm 2019

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