Past criminal offences – forgiven but not forgotten?

April 10, 2013


We have recently undertaken Disclosure and Barring Service checks (previously Criminal Records Bureau checks) against all members of staff working on a project for one of our biggest clients, SuperClient.  They recently added a new clause in their contract with us requiring us to undertake criminal record checks against all members of staff who will come into contact with data regarding their affairs.  The problem is that the checks revealed that one such employee was charged with being in possession of cannabis with intention to supply some 20 years ago, probably when he was a university student.  The employee in question has been employed by our company for over 10 years (he did not declare his conviction when responding to our pre-employment questionnaire) has an unblemished disciplinary record and is one of our star performers.  We are unsure whether it would be wise to keep him on the project for SuperClient.  Also, one of the managers has asked whether we should dismiss him (which seems very harsh) since we probably would not have employed him had we known about his conviction.  I would be grateful for your thoughts.           

Given the circumstances you describe, I agree that it would be too harsh to dismiss this individual after over 10 years’ service with an unblemished disciplinary record for something he did over 20 years ago (which is most likely to be a “spent” conviction in any event – see below).  To do so would leave your company exposed to an unfair dismissal claim by the individual which may well be successful.

Spent convictions

Under the current legislation, the law provides that those who have been convicted or have received a caution, warning or reprimand for an offence but have not re-offended during a specified period, are treated as if their conviction never occurred and it becomes “spent”.  People with spent convictions are entitled to hold themselves out as having a clean record and do not need to disclose spent convictions, even if there is a direct request for them to do so.  Failure to disclose a spent conviction is not a lawful ground for dismissing an individual, nor is it lawful to subject an individual to prejudice (e.g. refuse to hire or promote) for failing to disclose a spent conviction.  There are certain exceptions to this general rule, including in respect of certain “excepted occupations” such as certain professions (e.g. medics, lawyers and accountants), regulated occupations (e.g. in financial services) and occupations involving working with children or providing care services to vulnerable adults.  People falling within those exceptions may be required to disclose spent convictions and the criminal record checks carried out against them would also reveal such convictions.    

Challenge to current regime

The Court of Appeal has recently held (in R (on the application of T) v Chief Constable of Greater Manchester and others) that the current statutory criminal record checking scheme – which provides a blanket disclosure of all past criminal convictions and cautions - is incompatible with Article 8 (the right to respect for private and family life) of the European Convention on Human Rights.  One of the claimants in that case had been given two police warnings at the age of 11 regarding two stolen bicycles.  Those warnings were revealed in a criminal record check that was carried out when he applied (at age 19) for a university course involving teaching and contact with children.  The Court of Appeal held that, although the system in place has a legitimate aim (protecting employers and vulnerable persons), it is not a proportionate means of achieving that aim.  Following this decision, the Home Office announced a few weeks ago proposed changes to the law to relax the current criminal records checking scheme, although the draft legislation itself has not yet been published.

How should I react to a disclosure?

The key points to consider when faced with a situation such as this are the nature of the crime, whether it is “spent”, when it was committed (including the age of the offender at the time of the crime), whether the individual has subsequently re-offended and the nature of the work carried out (or to be carried out) by the individual.  Disciplinary sanction or dismissal should not be a kneejerk reaction to past misdemeanours that come to light.  If, for example, criminal record checks were to reveal that an individual employed as an accountant committed fraud or theft say two years ago, that would warrant a more serious response than if the checks were to reveal that the same individual was cautioned for shoplifting sweets whilst at school.  Proportionality is the key test and each case will turn on its own facts.

In relation to removing the individual from the project for SuperClient, you should check your contract with that client and the extent of their requirements.  If the requirement is just for your company to carry out criminal records checks, you have complied with your obligations and it is now a matter for you how you deal with your employee in light of those results.  However, if the requirement is for your company to ensure that nobody with a criminal record has access to data regarding SuperClient’s affairs, you should consider moving the individual on to another project, explaining to the employee why this is being done.  If the individual is moved to another project, you should not reveal to SuperClient the results of the criminal record checks and why the individual has been moved work on another project.

We are seeing an increasing trend in third parties requiring checks of clients' employees who work on their matters.  Now is a good time to roll out a vetting policy for existing employees and to look again at your pre-employment screening.  We can help you with that.

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