CRB Checks – Employers Beware!

The Home Secretary, Theresa May, is facing mounting pressure to overhaul the criminal records system after the Court of Appeal recently ruled that the way it operated was unlawful and breached human rights.

Is it fair?

The landmark ruling centred on “Mr T” who at the age of 11 received two cautions for stealing two bicycles. After a number of years, Mr T was forced to disclose these cautions twice in compliance with criminal records checks; first, at the age of 17, when he applied for a part time job at a local football club and again when he applied for a college course.

Under the UK’s current criminal records regime, there is a statutory requirement for criminal convictions and cautions to be disclosed when an individual applies for certain types of employment, such as working with children or vulnerable adults. This requirement applies regardless of whether the conviction is “spent” under the UK Rehabilitation of Offenders Act 1974.

The appeal court decided that blanket disclosure of all convictions and cautions an individual has had may unjustifiably interfere with that individual’s right to respect for private life under Article 8 of the European Convention on Human Rights.

The appeal court criticised the current scheme because it ‘does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work’. It therefore recommended introducing a filtering system, which takes into account the relevance of information about a person’s criminal record to the job for which they are applying.

The appeal court also upheld a second case involving “JB” who was cautioned in 2001 when she was in her early 40s for stealing a packet of false nails from a chemist in Sheffield. Ten years later she was turned down for a job working with vulnerable adults. The case shows that the ruling applies to minor offences committed by adults as well as juveniles.

The human rights group Liberty has welcomed the decision saying the judgment will “require the government to introduce a more nuanced system for disclosing this type of sensitive personal data to employers”.

Caution tape, health and safety

The Court emphasised the significant impact that such a system could have on individuals, reasoning that “the disclosure of historic information about convictions or cautions can lead to a person’s exclusion from employment and can therefore adversely affect his or her ability to develop relations with others”.

The Home Office has applied for permission to appeal this decision to the Supreme Court. Until that application is resolved, the above decision will not take effect. If the Supreme Court rejects the application or the appeal, the Government will need to act quickly to change the current criminal records check system to ensure it is fully compliant with human rights law.

In the meantime, this case serves as a useful reminder that employers making recruitment decisions should only take into account criminal convictions that are relevant to the job for which a candidate is applying.


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