In part 1 of this blog we looked at how criminal convictions impact on routine recruitment processes.
There are circumstances in which an employer has the right to know of both the spent and unspent convictions of a potential employee. In fact there are approximately 70 types of occupation where this information can legitimately be obtained.
These are to be found in what is called the Exceptions Order 1975 (recently amended about which more later) which says that in these cases the provisions of the Rehabilitation of Offenders Act do not apply.
Five broad categories of occupation are covered by the 1975 Order:
• Professions such as law and medicine;
• Occupations that are involved in the maintenance of the law for example judges and police officers;
• Regulated occupations such as financial services;
• Work that involves children, vulnerable adults and health services;
• Occupations where there is an element of national security by way of example air traffic controllers.
When recruiting for positions covered by the Order the employer is permitted to obtain information from the Disclosure and Barring Service (DBS) – this was created in 2012 by way of a merger of the Criminal Records Bureau and the Independent Safeguarding Authority.
The DBS provides three levels of certificate Basic, Standard and Enhanced and it is the latter two that will be of interest to employers.
Standard certificates will give details of convictions and cautions whether spent or unspent and police reprimands and warnings. However, there is some filtering of information. In 2013 the disclosure of all convictions and cautions however old was challenged as being a breach of Article 8 of the European Convention on Human Rights, which protects the individual’s right to respect for their private life. This challenge was upheld by the Court of Appeal and more recently confirmed by the Supreme Court. In fact in the period between the two hearings the UK Government took steps to address the issue. As a result what are called protected convictions and cautions are no longer revealed –an adult conviction that did not result in a custodial sentence will be removed after 11 years. There are limits to filtering for example violent and sexual offence will never be removed. It is unclear yet whether the changes that were made by the Government after the initial decision are adequate to meet the requirements of Article 8 so it is a matter of watch this space.
Enhanced certificates are available to employers in more limited circumstances, for example in relation to posts that involve work with children and vulnerable adults. This type of certificate will include all the information in the standard version plus what is called relevant police information and if appropriate, information held on statutory lists. The police information is obtained by the DBS asking chief police officers for any information they consider to be relevant. Since September 2012 individuals have been able to challenge the information provided under this heading. This is a contentious and complicated area and there are likely to be further developments in the future.
Employers entitled to apply for standard or enhanced certificates should bear in mind that the details given will be fairly basic and will probably only relate to criminal convictions and cautions in the UK. The certificate will only be accurate as at the time it is issued although an online system for updating information is now available.
Another point is that DBS checks can be made not only in relation to employees but also for example for volunteers. Many of us doing voluntary work have to allow our charity of choice to obtain certificates.
The whole area of DBS checks is complex – the DBS website provides a wealth of information but if in doubt take advice before plunging into this difficult and constantly changing area.