DBS Checks: What you can and cannot do as an employer

As part of their recruitment process employers are increasingly requesting enhanced criminal records checks through the Disclosure and Barring Service (‘DBS checks’). Additionally, in some roles such as those that involve working with children and vulnerable adults, these checks need to be updated regularly. It is therefore imperative that employers know their rights and limitations when requesting DBS checks from both existing and potential employees.

Since 2013 the Rehabilitation of Offenders Act 1974 has prevented DBS checks from including all of an individual’s previous convictions. A filtering process was implemented to allow single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence to remain undisclosed after eleven years (or five and a half years if the person was under 18 at the time of the offence).

Since this update, people with one-off spent convictions have not had to run the risk of being treated less favourably when applying for jobs as they are under no obligation to voluntarily disclose spent convictions and cautions, nor would they show up on a DBS check. On the other hand, if they have more than one conviction this triggers all of them, regardless of their date, to be disclosed.

A recent case in the High Court highlighted the risks involved and brought into question whether this new filtering process was in fact still in breach of Article 8 of the Human Rights Act 1998 (the right to respect for private and family life). Interference with this particular right can only be permitted in limited circumstances when there is a legitimate need and it is in the public interest to do so.

The case of R (on the applications of P and A) v Secretary of State for Justice and Secretary of State for the Home Department involved two applicants, P and A. Applicant P was charged with shoplifting after stealing a book worth 99p in 1999. She was bailed and due to appear before the Magistrates Court but failed to attend, citing her mental illness as the reason. She was therefore convicted of a second offence for absconding under the Bail Act 1976. In November 1999 she was given a conditional discharge for both offences but under the current law she is still required to disclose these two offences when applying for voluntary positions at schools. Both offences would show up on any enhanced checks the employer carries out. P argued that the filtering process was unnecessarily punitive and in this instance disproportionate for protecting the interests of the children. She claimed that by disclosing such convictions she was being forced to disclose her medical history of mental illness which interfered with her rights under Article 8.

Applicant A was convicted of two offences of theft when he was a teenager and over 30 years later was concerned that these convictions would need to be disclosed when applying for financial positions. He argued that the criminal records disclosure system is arbitrary and that judicial reform is needed to allow for individual consideration of each case so that old, minor and irrelevant convictions need not be disclosed.

Ultimately the High Court found that there was not a justifiable link between ensuring someone was suitable for a particular role and interfering with their Article 8 rights in these instances. The criminal records disclosure scheme was therefore arbitrary and not in accordance with the law. The judge held that it was disproportionate and unnecessary for someone to have minor offences disclosed indefinitely just because they have committed more than one minor offence. The judge asked the government to address the faults in the legislation so that it falls more in line with the right to respect for private and family life.

While changes have not yet been implemented, organisations should bear in mind that parts of the criminal records disclosure scheme are incompatible with the right to respect for private and family life, and as such, each case should be handled with care. Employers refusing an applicant based on historic minor convictions could well be scrutinised so care will need to be taken to ensure the disclosed convictions are relevant to the position in question. It is also imperative that all relevant parties within the organisation, for example those who carry out recruitment processes and in human resources are aware of the correct procedure.

We expect further clarity when the government addresses the current legislation…so, watch this space.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.