We were recently contacted by an individual who raised concerns about a misleading question and statement around criminal record checks on a music schools application form.
The majority of roles being advertised by the music school were teaching roles which would be eligible for an enhanced Disclosure and Barring Service check. However, neither the question nor the guidance referred to the fact that ‘protected’ cautions and convictions did not need to be disclosed. They stated:
Question relating to criminal records
“Have you ever been convicted of a criminal offence or received a caution, reprimand or warning?”
Statement relating to criminal records
“[X] are committed to safeguarding and promoting the welfare of children and expects all staff to share this commitment. A DBS check is currently proportionate and relevant to this role at [X]. This post is exempt from the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and you must disclose spent and unspent convictions, cautions, reprimands and warnings. If after the interview stage it is decided to offer you a post a check will be undertaken with the DBS prior to confirmation of your appointment. Failure to disclose information is an offence and will result in dismissal from the role. It may also result in referral to the police”.
We were concerned that the misleading question/guidance could result in an applicant over-disclosing the details of their criminal record. The music school could potentially be in breach of data protection legislation by collecting, processing and storing data unlawfully.
We contacted the music school who immediately took on board our recommendations and amended both their application form and the guidance to the following:
Question relating to criminal records
“Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?”
Statement relating to criminal records
“X are committed to safeguarding and promoting the welfare of children and expects all staff to share this commitment. A DBS check is currently proportionate and relevant to this role at X. This post is exempt from the Rehabilitation of Offenders Act 1974. Under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 you must disclose any unprotected spent and unspent convictions, cautions, reprimands and warnings. If after the interview stage it is decided to offer you the post a check will be undertaken with the DBS prior to confirmation of your appointment. Failure to disclose information is an offence and will result in dismissal from the role. It may also result in referral to the police”.
Lessons
With changes to disclosure and data protection law, employers need to ensure that they are fully compliant with the questions they ask about criminal records. However, as in this case, immediately after the issue was raised with the school they reacted quickly to amend their application forms and the guidance they provided to applicants.
Links
- Practical guidance: Wording questions that ask about criminal records
Notes about this case study
This case study relates to our work with other organisations.
Names and details have been changed to protect the identity of those involved.
Published September 2019
