Employment & HR - colourful people chain image

Checking your prospective employees

A recent appeal court ruling on 31 January 2012 centred on a 21-year-old man who had received warnings from the police when he was 11 years old in connection with two stolen bikes. The information was disclosed on two occasions; when he applied for a part-time job at a local football club at the age of 17 and later when he applied for a university course in sports studies. This was in spite of the fact that the cautions were spent under the Rehabilitation of Offenders Act 1974. The court, including Lord Dyson, one of Britain’s most senior judges, ruled that the current blanket system of job applicants being obliged to disclose all offences, including minor offences and cautions was a breach of an applicant’s right to a private and family life. This decision has caused enormous problems for the Home Office, leaving Theresa May, the Home Secretary, under increasing pressure to overhaul the criminal records system.

The far reaching implications of this decision are demonstrated by the fact that the release of the judgment was delayed from December 2012 in order to allow the Home Office time to prepare to avoid the CRB checking system being plunged into chaos. Lord Dyson has criticised the Government’s slow response to the ruling, calling for them to introduce new legislation.

In another case-law example the court ruled in favour of a woman in her 40s who was turned down for a job working with vulnerable adults, despite having undertaken a 6 week training course, on the basis that she had been cautioned in 2001 for stealing some false nails from a chemist.

The Judges agree that there was a legitimate aim in disclosing convictions and cautions – to protect vulnerable adults and children. However, the disclosure of all convictions and cautions was deemed to be a disproportionate means of achieving that legitimate aim. They particularly objected to the fact that the level of disclosure was the same regardless of the particular position being applied for. Their central argument was that’ as a conviction recedes into the past it becomes part of the individual’s private life’.

Whilst the Home Office argue that they cannot make a declaration that the current law is incompatible with human rights as the matter is currently being considered by Parliament, the appeal court Judges reject this and stand by their ruling made on 31 January that the Home Secretary has 28 days from that date to take the matter to the Supreme Court otherwise the current system will be ruled as unlawful.