Reining in criminal record checks

A recent decision of the UK Supreme Court, concerning the disclosure of certain offences and cautions during the job application and hiring process, will be of interest to employers; particularly those employing staff who may come into contact with the young or vulnerable.

In the case the Court upheld an earlier decision made in the Court of Appeal last year, which ruled that disclosure of all convictions and cautions irrespective of their relevance in the particular circumstances was disproportionate and therefore amounted to a breach of Article 8 of the European Convention on Human Rights. Article 8 provides that everyone has the right to respect for private and family life. It is accepted that serious offences, and those resulting in lengthy prison terms, should always be disclosed where the subject of the search (a prospective employee, volunteer, carer etc) would be working with young or vulnerable people.

The Court of Appeal heard cases brought by several aggrieved job applicants who had been turned down employment as a result of historical cautions coming to light following criminal record checks. The Claimants argued that they had been unfairly treated by the blanket policy (now recently amended) of disclosing all cautions and convictions, regardless of relevance.

One case was brought by a man who, aged 11, had received police warnings regarding two stolen bicycles. Aged 17 he applied for a job with a local football club and at 19 applied to enroll on a sports studies university course. Both jobs involved him coming into contact with children; on both occasions criminal record checks disclosed his police warnings.

The man issued judicial review proceedings, claiming that the policy of making full disclosure was incompatible with Article 8 and therefore breached his human rights. He argued that the warnings (essentially dealing with acts of dishonesty when he was very young) were not relevant and that their disclosure would be disproportionate. The High Court dismissed his claim, but the Court of Appeal (and ultimately the Supreme Court) found in his and the other Claimants’ favour.

As a consequence, certain minor offences, which would previously have been disclosed, may no longer be disclosed to prospective employers or others considering recruiting the individual. The Government has subsequently made changes to the legislation to reflect the Court’s decision.

David Dixey is a specialist employment solicitor in Holmes & Hills Solicitors' team of litigation lawyers.