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Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

The Rehabilitation of Offenders Act 1974 provides that criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be “spent” after specified periods of time. Spent cautions and convictions will generally not need to be disclosed. However, a person applying for an excepted post (including work with children or vulnerable adults) may be asked whether they have any unspent convictions and cautions. In addition, excepted posts qualify for checking through the Disclosure and Barring Service (DBS) by means of a standard or enhanced DBS certificate.

In 2013 the government amended the filtering rules for criminal record checks to allow offenders with single convictions that are non-violent, non-sexual and non-custodial to have the offence filtered out of a DBS check after 11 years (unless the offender was a minor when they committed the offence, in which case this time period was reduced to five years and six months). However no such provision was introduced for persons with multiple offences, meaning that where an individual has more than one conviction (of any kind) these must be disclosed. Please note that the filtering rules are separate to the rules in relation to spent convictions.

In R (on the application of P and others) v. Secretary of State for Justice and others, the Court of Appeal (the Court) held that these filtering laws are incompatible with human rights legislation as they only benefit single conviction offenders and fail to adequately protect other individuals’ right to a private life.

This case involved an individual suffering from schizophrenia who had multiple cautions for shoplifting as well as a conviction for a bail offence; as a result of these she was unable to get a teaching assistant role. The Court rejected the government’s case that it was clearer to have a ‘no multiple offenders filter’ rule than to spend more time adjusting the filter depending on the circumstances. The judge stated:

“I recognise that where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers. The difficulty with the bright line, however, is that it is not a necessary inference that two convictions do represent a pattern of offending behaviour; indeed on many occasions they will not.”

The Court went on to say that it should be possible to create a filter that takes into account the nature of any offences as well as the length of time that has passed since any convictions; alternatively a mechanism for review in specific circumstances could be introduced (as is the case with removal from the sex offenders’ list).

As a result of this case there are now calls for the government to reform the criminal records system, although this will, in all likelihood, take a back seat in light of the snap election and Brexit. However if such changes are made it is likely that (1) fewer offences would appear on the criminal records register; (2) individuals would receive a greater degree of protection from minor offences that occurred in the past; and (3) there would be less serious implications in terms of employment prospects for minor re-offending.

Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

Criminal record check for Tier 2 UK migrants

From 6 April 2017 those applying to come to the UK to undertake certain jobs, along with their adult dependants, will be subject to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which they have been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years, aged 18 or over.

From January 2017, sponsors must start informing prospective employees at the point they assign their Certificate of Sponsorship that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Health services and public health managers and directors
  • Social services managers and directors
  • Medical practitioners
  • Psychologists
  • Pharmacists
  • Ophthalmic opticians
  • Dental practitioners
  • Medical radiographers
  • Podiatrists
  • Health professionals not elsewhere classified
  • Physiotherapists
  • Occupational therapists
  • Speech and language therapists
  • Therapy professionals not elsewhere classified
  • Nurses
  • Midwives
  • Further education teaching professionals
  • Secondary education teaching professionals
  • Primary and nursery education teaching professionals
  • Special needs education teaching professionals
  • Senior professionals of educational establishments
  • Education advisers and school inspectors
  • Teaching and other educational professionals not elsewhere classified
  • Social workers
  • Probation officers
  • Welfare professionals not elsewhere classified.

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (Entrepreneur) or Tier 1 (Investor) and any adult dependant relative of the main applicant in either of these categories.

Criminal record check for Tier 2 UK migrants

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related story, it poses an interesting question to employers in the UK … can you dismiss an employee who faces a criminal conviction?

You would first need to consider whether this behaviour was misconduct. There is no outright rule that an employer should dismiss an employee who it is alleged has committed or is found to have committed a criminal offence. The Acas Code of Practice states at paragraph 31 that “if an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Some points an employer may want to consider include:
• the seriousness of the offence;
• whether it can leave the job open while the employee cannot work;
• whether the conviction affects the employee’s job (e.g. loss of driving licence); and
• the employee’s refusal to cooperate with the employer’s disciplinary investigations.

Employers should also consider what its employee handbook says on this topic. For example, a typical clause in the handbook may state “a criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter if we consider that it is relevant to your employment.” Therefore, the employer will need to review and consider whether an investigation or suspension would be necessary. Responding to an employee’s criminal conviction remains a grey area on which advice should be sought.

Can you dismiss an employee if they have allegedly committed a criminal offence?

Virgin Trains goes full steam ahead in employing ex-offenders

Sir Richard Branson is reaching out to the talent among ex-offenders and encouraging other businesses to look past individuals’ criminal convictions when recruiting for suitable roles. This comes after Mr Branson’s first push to employ ex-offenders in 2011 and as unemployment in the UK hits its lowest level since the financial crisis in 2007.

Mr Branson states that in the UK, re-offenders cost  taxpayers more than £13 billion per year. However, if ex-offenders can find work, the risk of re-offending is significantly reduced. To support other businesses with this initiative, Virgin Trains is launching a toolkit to offer practical advice on hiring ex-offenders.

Over the last three years, Virgin Trains has employed 30 ex-offenders, 25 of which still work for the company across various roles. To the knowledge of Virgin Trains, no ex-offender employee or candidate has re-offended and the company is looking to boost its numbers of ex-offender employees as much as possible over the coming years.

From a legal position, employers can seek information about employees’ criminal record history either through voluntary disclosure or, where the individual’s role requires it, by official criminal record checks through the Disclosure and Barring Service (DBS). If undertaken, these checks should be made once an applicant has been successful (and the offer of employment made conditional on a satisfactory check). The employer might also want to refresh these checks if an employee’s role changes. Checks should be periodically refreshed as a matter of course where their role involves working with a vulnerable group of people e.g. young children.

Mr Branson is proud to point out that the Virgin group does not conduct criminal records checks unless it’s legally obliged to do so (and therefore Virgin Trains may employ more than the 25 ex-offenders it has hired through its ex-offenders program). It is good practice for employers to consider whether a criminal records check is actually necessary for a given role before undertaking one in respect of an employee or a new recruit. Even if a check reveals that the individual concerned does have a criminal record, the employer should give consideration to whether the offence committed will actually impact on the ability of that person to perform the job that they are employed to do, or have been offered.

Virgin Trains goes full steam ahead in employing ex-offenders