What are YOU allowed to know about a job candidate's criminal past?

21 August 2014 -

Privacy law specialists delve through a recent Supreme Court ruling, for points that EVERY manager should know about how far bosses are legally able to vet prospective staff

Dominic Crossley and Clarissa Ferguson

Tempting as it is for an employer to try and find out as much as possible about an individual prior to making a job offer, a balance needs to be struck between sufficient “vetting” of prospective employees and preventing excessive intrusion into private lives. As such, managers must be aware of how recent developments in law impact upon how employment checks and recruitment screening can be adequately and lawfully completed.

The recent Supreme Court judgment in R (on the application of T and another) v Secretary of State for the Home Department and another [2014] provides important guidance regarding the scope of private information, the criminal-record checking system and what should be considered in accordance with the law.

A person’s right to private life is protected by Article 8 of the European Convention on Human Rights, and any interference with this right must be both justifiable and proportionate.

Under the Rehabilitation of Offenders Act 1974, in instances where individuals are asked about their criminal records, they will not be obliged to disclose any convictions, warnings, cautions or reprimands that are “spent” (in other words, that a specific period of time has elapsed from the date of the conviction). However, later legislation in the field created certain exemptions, insofar as the offences related to specified jobs, particularly work with children or vulnerable adults. Consequently, the obligation for disclosure was substantially extended – as was the scope for making an adverse employment decision following the disclosure.

The individuals in the Supreme Court case were T and JB (their real names were anonymised). In 2002, when T was 11 years old, he received two warnings from the police for the theft of two bicycles. The warnings were disclosed when, as an adult, he applied for a position that required an enhanced criminal record certificate (ECRC), due to potential contact with children. This led to his application being rejected. Meanwhile, in 2001, the police issued a caution to JB – a 41 year-old woman – for the theft of a packet of false fingernails from a shop. In 2009, she completed a training course for employment in the care sector and was required to obtain an ECRC. As in the case of T, that measure disclosed her caution. The training provider subsequently told JB that it felt unable to put her forward for employment in the care sector.

Neither respondent had any other criminal record. Both respondents, T and JB, asserted that the references to their cautions in the certificates violated their right to respect for private life, under Article 8 of the ECHR.

The Supreme Court held that the statutory criminal-record checking scheme breached an individual’s Article 8 rights. The Court recognised that the disclosures in ECRCs constituted interference into a person’s privacy, and held that such interferences could not be said to meet the requirement of being necessary in a democratic society. In his judgment, Lord Wilson stressed that T’s childhood mistake – since which he’d never offended – bore no rational link to whether he may have posed a threat to children as an adult. It was also held that the impact on JB’s private life of the disclosure of her caution for minor dishonesty was disproportionate to the potential benefit she may have brought by achieving the objective of protecting the people she would have cared for.

While there is clearly a need to ensure the suitability of applicants to employment positions, examination of old, minor convictions should not interfere with an individual’s right to put the past behind them. In light of the recent developments, managers will need to be mindful that unless they are working with the vulnerable, it may not be considered proportionate to examine old minor convictions – and even then, there is a need to balance the right to “vet” with the rights set out in Article 8.

Recruiters may consider that the recent legal developments provide an appropriate shift of risk – although managers’ murmurs in the wake of the case suggest that this loss of transparency is lamented. However, it is important to note that the judgment does not impact upon standard criminal record checks which, for the majority of employment screening, will be sufficient.

Dominic Crossley is privacy and media law partner and Clarissa Ferguson trainee solicitor at London-based firm Payne Hicks Beach