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How far can you go to check staff criminal records?

Employing staff with criminal records can prove an employment law and data protection headache for resellers. Frances Butler and Georgina Lawrence outline the main issues

It is well established that employers do not have an unlimited right to information about the criminal records of job applicants, employees or contractors. Instead, the law aims to strike a balance between the successful rehabili- tation of offenders and recognition of the need for disclosure of criminal offences in some circumstances. With IT being both a high value business and one linked to sensitive information, resellers do need to know who they are employing.

Key legislation in this area is the Rehabilitation of Offenders Act 1974 (ROA), which provides that some convictions become “spent” if the individual does not re-offend during a specified period from the date that their sentence is completed (the rehabilitation period). The length of the rehabilitation period depends on the sentence imposed and not the nature of the offence. Importantly, individuals with spent convictions may hold themselves out as having a clean record even where employers ask directly about spent convictions or impose a contractual requirement to disclose them. There are, however, circumstances where employers may lawfully obtain such information.

The Data Protection Act 1998 (DPA) is also relevant. Under the DPA, information about criminal records is “sensitive personal data” and there are particular safeguards around the processing (any use, from collection to destruction) of such data. Although detailed guidance on data protection is beyond the scope of this article, employers should be aware that personal data must be processed in accordance with the DPA. In particular, any personal data must be adequate, relevant and not excessive for the purpose(s) for  which it is being processed and can only be used if a required legal justification exists.Lastly, there may be legal consequences if a reseller dismisses staff or withholds employment based on somebody’s criminal record.

The simplest way to find out if somebody has a criminal record is to ask them during the recruitment process. The risk is that the employer will not get the information they want. Further, employers cannot insist on disclosure of spent convic- tions and failure to disclose them is not a lawful ground for dismissal or withholding employment. If this is important to an employer, they should consider whether they have lawful grounds for accessing this information through the Disclosure and Barring Service (DBS).

Some employers require prospective employees to make a subject access request to obtain a copy of their full criminal record, which is then given to the employer (enforced subject access). However, from last month, when section 56 DPA came into force, enforced subject access became a criminal offence. This could entail a large fine, adverse publicity and/or personal criminal liability for senior employees. The objective is to stop excessive access by employers to protected records. The offence applies to employees, office holders (even where unpaid) and where engaging non-employees under contracts for services.

Practically speaking, employers should make it clear early on that vet- ting will take place and how it will be conducted. Questions should be tai- lored to obtain only the precise information required. It is best to request information once an applicant has been chosen for the job, by making the offer of employment subject to satisfactory background checks. Requesting information from all applicants at an early stage in the recruitment process may be deemed excessive and disproportionate.

Excepted posts
The ROA identifies a number of excepted occupations, offices or professions where employers may be permitted, or even required, to check a person’s official criminal record rather than relying on voluntary disclosure.

There are five broad groups of excepted posts which are the professions (for example, lawyers, accountants and doctors); those employed to uphold the law (for example, judges, police, prison officers, traffic wardens); regulated occupations (for example, financial services, nursing home providers, taxi drivers); those who work with children or vulnerable adults or who provide health services; and those whose work means they could pose a risk to national security (for exam- ple, air traffic controllers).

Applicants for excepted posts may be asked whether they have any spent convictions, as long as they are asked for the purposes of assessing their suitability for that post. Further, they must be informed that they are required to disclose spent convictions. Unlike other roles, employers may be entitled to withhold employment from an applicant for an excepted post who does not answer such questions, or who answers dishonestly. Even here, employers must comply with data privacy laws.

The Disclosure and Barring Service
Employers recruiting for excepted posts are also entitled to ask for DBS checks on applicants. Disclosure is provided by certificate. There are three levels that can be applied for in respect of excepted posts: standard disclosure, enhanced disclosure and enhanced with list checks disclosure.

Employers should be aware that there are still limits to DBS disclosure. First, DBS certificates show only the basic details of offences and not the context. Further, since May 2013, they no longer show certain old and minor offences. They may not include details of overseas convictions. These limitations should be borne in mind when making decisions about employment.
DBS certificates are first provided to individuals so that they may review and challenge the content before it is released to potential employers. Employers are able to apply for copies of certificates, but only if certain conditions are met.

Since June 2013, individuals have been able to keep their DBS certificates up-to-date, subject to payment of an annual fee (£13 or free for volunteers). If individuals have subscribed to the update service, employers can, with the individual’s consent, carry out free online checks to see if any new information has arisen since the certificate was first issued (status checks). This is provided that the same type and level of check is required as previously. Obtaining a valid data privacy con- sent to use can be challenging.

The DBS Code of Practice requires employers seeking information from the DBS to make it clear in the application form that DBS disclosure is required; notify all applicants of the potential impact on the recruitment process if they are found to have a criminal record; discuss any matters revealed on the certificate with the applicant before deciding whether or not to withdraw the offer; and pro- vide applicants with a copy of the Code of Practice on request.

Dealing  with  information about  criminal  convictions What should employers do if they discover, via the DBS or otherwise, that a prospective employee has a criminal record? Many employers’ first instinct would be to reject the individual as unsuitable, but it may not be appropriate to do so. Kneejerk reactions should be avoided.

The employer’s approach will depend partly on the nature of the vacancy, including whether it is an excepted post. In general, however, the employer is expected to use their judgement and consider the following factors:
■    Is the conviction (or other information) relevant to the post?
■    How serious is the offence?
■    How much time has passed since the offence was committed?
■    Have the individual’s circum- stances changed since the offence?
■    What was the context of the offence and what is the individual’s explanation?
■    Are there any other relevant matters?

Employers should steer away from having a blanket ban on employing ex-offenders and should instead assess the risk with regard to their business and the specific role. They should consider other ways of assessing individuals’ suitability, such as checking qualifications and references, ensuring application forms and interviews are fit for purpose and making effective use of pro- bationary periods.

For excepted posts, employers can take more information into account when weighing the above factors, including spent convictions. Depending on the role, it might even be unlawful to employ somebody who has certain information on their criminal record. However, this is not always the case and employers should not assume they are justified in rejecting an applicant without further consideration.

If the vacancy is not an excepted post, employers must disregard any spent convictions, even if voluntarily disclosed, and securely delete this information as soon as possible in accordance with the DPA. Unspent convictions may be considered in conjunction with the above factors and discussed with the individual before any decisions are taken.

Existing employees
Employers sometimes discover that an existing employee has a criminal record. If the employee has failed to declare relevant information on recruitment, there may be grounds for disciplinary action, especially in relation to excepted posts. This might also apply if the employee has gained a criminal record since starting work, but has failed to comply with a continuing contractual obligation to disclose new convictions.

Generally speaking, the ACAS Code of Practice on Discipline and Grievances states that employees should not be dismissed or otherwise disciplined solely because they have been charged with or convicted of a criminal offence.

Employers should instead consider the effect on the employee’s ability to do their job and their relationships with clients and colleagues. Other relevant factors include the nature and seniority of the role, the employ- ee’s length of service and whether any vulnerable groups are affected. To avoid unfairly dismissing employ- ees, employers must ensure they have a fair reason for dismissal and that dismissal is reasonable in all the circumstances. If dismissing for mis- conduct, employers must show that they have a genuine belief in the mis- conduct, based on reasonable grounds and supported by a reasona- ble investigation.

Even where criminal conduct has no bearing on employment, the employee might be unavailable for work because they are on remand or in custody. In those circumstances, employers should consider whether they can hold the role open in light of organisational needs.

Alternatively, off-duty conduct could lead an employee to lose a licence that is essential for the lawful performance of the job. In that case, alternative employment should be considered before dismissal. Dismissal may be possible in either case, but employers should still ensure they have a fair reason (possibly “some other substantial reason”) and have followed a fair process, including allowing employees to make representations and consider- ing mitigating circumstances.

There are many steps resellers can take to ensure an applicant’s suitability for employment. However, employers should balance their rights to information with individu- als’ rights to privacy and fair treat- ment and should be careful how they treat any information received. These principles apply to both job applicants and existing employees who acquire criminal records. ■

Frances Butler is an associate in the human resources group, and Georgina Lawrence is an associate in the commercial law practice group of Eversheds.

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