Possessing a criminal record is possibly the most significant obstacle a prospective employee has to overcome. Balanced against the arguments that individuals should not be unduly burdened by their previous mistakes are the needs of employers to assess the suitability of their staff by making enquiries into their backgrounds.
The Rehabilitation of Offenders Act 1974 generally protects prospective employees against rejection for, or dismissal from, a job based purely on their past misdemeanours by providing that a person who has been convicted of a criminal offence but is not convicted of a further indictable offence during a specified period will effectively mean that, in most cases, the individual starts again with a clean sheet.
The length of the rehabilitation period depends upon the sentence imposed and time starts to run from the date of conviction. However, any conviction that results in a prison sentence of more than 30 months can never be eradicated.
Where a conviction does become spent an individual is not required to disclose this. Any failure to disclose a spent conviction which may become apparent at a later date will not amount to proper grounds for dismissal or for exclusion from any office, profession, occupation or employment or for prejudicing that person in any way. There are certain limited exceptions to this general rule. Where such exceptions do apply, however, an employer is entitled to use a previous or spent conviction, or a subsequent discovery that details of previous or spent convictions have been withheld, as a basis for refusing employment.
The Criminal Records Bureau (CRB) can for the first time allow employers and other organisations comprehensive access to details of an individual's previous character. The CRB will enable employers to indirectly check police records pertaining to prospective employees by introducing a service called Disclosure.
The Disclosure service is available to employers, volunteering organisations, professional bodies and certain licensing authorities and provides for three levels of police checks. Disclosure cannot be sought by an employer directly: the individual must make a request to the CRB and so the process relies upon prospective employees co-operating with employers. The results of the Disclosure issued will be used at the recruitment stage to assess the suitability of a successful candidate. The three levels of Disclosure are-
Level One - Basic Disclosure
Any employer and/or volunteering organisation will soon be entitled to ask a prospective employee/volunteer to obtain a Basic Disclosure from the CRB. Basic Disclosure provides details of any criminal convictions which are held at national level on the Police National Computer and which are not considered to be spent.
The results of a Basic Disclosure will be sent to the individual and not automatically copied to the employer, however, at present Basic Disclosure is not yet operational at the CRB.
Level 2 - Standard Disclosure Standard Disclosure is not available to all employers and is only available in respect of positions and/or professions which are contained within the terms of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These are positions that involve regular contact with children and vulnerable adults. Standard Disclosures contain details of all convictions which are on record, together with details of any cautions, reprimands or warnings given to that individual by the police.
Here an employer must first apply to the CRB to become a Registered Body, i.e. an employer, organisation or individual who is entitled to ask exempted questions under ROA. Whilst again it is the individual who applies for Disclosure, the application for Standard Disclosure must be countersigned by a Registered Body. The results of the Disclosure will be sent both to the individual and the Registered Body.
Stage Three - Enhanced Disclosure Enhanced Disclosure is the highest level of disclosure and only available in respect of those individuals who-
• regularly care for, train, supervise or are in sole charge of either children under the age of 18 or vulnerable adults aged 18 and over; or
• are involved in certain aspects of gaming and lotteries; or
• register for the purposes of child minding and day care under the Children Act 1989; or
• seek approval for or with whom foster children are placed under the Children Act 1989 and/or relevant Scottish statutory provisions.
In addition to the details contained in a Standard Disclosure an Enhanced Disclosure may contain further information because it involves an extra level of checking with local police force records in addition to the details held on the Police National Computer and the DH and DfES listings. The local police information may, at the discretion of the Chief Constable, either be contained within the Disclosure itself or, should the Chief Constable not wish certain information to be seen by the potential employee, sent under separate cover to the employer. If sent separately the Disclosure certificate will refer to the fact that this has taken place.
The CRB has now issued over 6 million disclosures and processes over 55,000 checks per week in relation to Standard and Enhanced Disclosure.
Code of Practice
The potential widespread release of sensitive information by the Disclosure process creates its own problems, not least in terms of privacy and confidentiality. For this reason the scheme is accompanied by a Code of Practice for Registered Persons and other recipients of Disclosure Information which aims to ensure that information revealed by Disclosure is fairly and properly used by recipients. Where the CRB believes that a registered person has failed to comply with the Code of Practice, or countersigned an application at the request of a body or individual that has failed to comply with the Code of Practice, the CRB may refuse to issue a Disclosure.
The Code sets out employers' obligations in respect of the case of information obtained through Standard and Enhanced Disclosure. Companies are required to delete information about criminal convictions collected in the course of the recruitment process once it has been verified through a Criminal Records Bureau Disclosure, unless in exceptional circumstances the information is clearly relevant to the ongoing employment relationship. Employers should consider the possibility that some business needs might be satisfied by using anonymised rather than identifiable records. This is consistent with the Criminal Records Bureau Code of Conduct. However, where there is a legal obligation to retain specified information for longer than six months, this must be respected. The Code also prohibits employers from sharing with other employers, the information obtained through a disclosure.
The CRB's website at www.crb.gov.uk has some detailed and very useful information available for employers on the Bureau itself, the Disclosure process and the Code of Practice.
Kate Hodgkiss, a solicitor at the international law firm DLA Piper Rudnick Gray Cary UK LLP. Kate.Hodgkiss@dlapiper.com
Andrew Twomey, a trainee solicitor at the international law firm DLA Piper Rudnick Gray Cary UK LLP. Andrew.Twomey@dlapiper.com