We know that in a competitive employment market employees have to differentiate themselves in increasingly creative ways but did you know that at the same time as this is happening a small minority of employers are going to extraordinary lengths to acquaint themselves with prospective employees’ backgrounds? No this isn’t a post about monitoring tweets or facebook profiles but one about the worrying way in which a minority of UK employers seem able to sidestep the Rehabilitation of Offenders Act 1974 and effectively discriminate against ex-offenders. If this is news to you or you want to learn more about criminal record checks in the UK you should read on.
You need to understand that the Act was intended to help rehabilitate those who have broken the law by prescribing a rehabilitation period after which certain criminal convictions are ‘spent’ or forgotten. The length of the period varies according to the offence and the age of the offender but as a guideline it can generally be said that convictions resulting in:
- Fines and community service become spent after five years;
- Prison sentences of up to six months become spent after seven years;
- Prison sentences between six months and two and a half years become spent after ten years;
- Sentences over two and a half years are never spent.
It’s unlawful for an employer to discriminate on the grounds of a spent conviction. As you might expect there are exemptions from the Act and most people wouldn’t take exception to the exemptions which apply to certain types of job, usually those:
- Where people are working unsupervised with high risk groups such as children and older people;
- Involving senior roles in banking and the financial services industry;
- Connected to law enforcement;
- Involving national security;
- In the prison service;
- Within health, pharmacy and the law;
- In private security work.
Employers offering a position which is exempted from the Rehabilitation of Offenders Act 1974 will usually seek a STANDARD disclosure for around £26 or an ENHANCED disclosure for around £43 from the Disclosure and Barring Service through an accredited third party organisation. It is important here to understand that though the applicant for the check is the employee, the Standard or Enhanced Disclosure check can only be processed via the employer who must prove that it is necessary. An individual cannot request a standard or enhanced disclosure check on themslves.
Where a job doesn’t require a standard or enhanced DBS check the employer still has the right to ask if the individual has a criminal record but if the conviction is ‘SPENT’ under the Rehabilitation of Criminal Offenders Act 1974 the prospective employee doesn’t have to disclose this. If the employer wants proof that the individual has no criminal record they can ask the individual to request a BASIC disclosure. Any individual can do this but to do so they must visit the Disclosure Scotland website for this service, confusing I know but you don’t need to live in Scotland to apply for a Basic disclosure in your own name. You might be asked to provide a Basic disclosure for a new job or if you are undertaking volunteer work and there is a cost of £25 to do so. Of course a Basic disclosure will not reveal details of any spent convictions, you are protected under the Act as the position is not exempted from the it. If you really want to get into the meat of this you need to visit the DBS website for more detailed information on Disclosure and Barring Service checks.
Where things get interesting is when we consider that sometimes for non-employment purposes someone may be required to disclose information about themselves and any criminal record which they may have. A POLICE CERTIFICATE is a criminal record check issued mainly for immigration purposes. It is needed if you require a work or residency visa for countries including Australia, Canada, New Zealand, South Africa and the USA. In the case of the USA you will also need a Police Certificate for holiday purposes if you have ever been arrested or convicted of any offence, no matter how long ago it was. The cost of obtaining a Police Certificate is £45. A SUBJECT ACCESS REQUEST is different as this is to provide an individual applicant with details of any information held about them on police computers and is intended for personal use only. The cost of obtaining a Subject Access Request is £10. To apply for a Police Certificate or a Subject Access Request you should click on the link to your local police force, found on the following ACRO page
Both check the Police National Computer to see if the individual has a criminal record and check for ALL Convictions, Warnings, Reprimands and Cautions recorded on UK Police Systems. The ‘ACPO Retention Guidelines for Nominal Records on the Police National Computer’, which incorporates the Step Down Model, are applied when preparing the Police Certificate. Scottish and Military Convictions are NOT subject to the Step Down Model.
In essence this means that a Police Certificate or a Subject Access Request will in most cases show ALL arrests and convictions, even if the conviction is SPENT. For this reason a Police Certificate or a Subject Access Request should NOT be used for employment purposes and an employer should not ask a prospective employee to obtain one, even if it is at the employer’s expense. If a full disclosure is necessary because the employee is working unsupervised with vulnerable groups the position would be subject to a Standard or Enhanced Disclosure DBS check which the employer could apply for. If the onus is placed on the employee to confirm the information the position is not subject to a Standard or Enhanced Disclosure and a Basic Disclosure fulfils this requirement, providing the protection afforded to individuals under the Rehabilitation of Criminal Offenders Act 1974.
A prospective employer, who insists on being provided with a copy of a Subject Access Request, even if it is at their expense, is creating an unlawful bar to employment and potentialy a claim for unlawful dismissal. At best they are demonstrating their naivety with the basics of employment law, at worst they are setting out to deceive the individual and deprive them of the basic protections afforded to them under the law. Where a Standard or Enhanced Disclosure is deemed to be necessary strict guidelines are in place governing how that information may be used. Making the content of a Subject Access Request freely available may lay a prospective employee open to bullying, intimidation or even blackmail in the workplace.
All rights reserved © 2014 Andrew Hutchinson