In August 2016, we were made aware of a declaration on a building societies corporate ‘buy to let’ mortgage application form which we believed could be misleading. This stated:

I declare that, if I have been convicted of, or cautioned for (or charged but not yet tried with) fraud, arson, robbery or any other criminal offence (other than a motoring offence), I have given full details in this application form. I also declare that, if I am aware that any other person who will live in the property after completion of the mortgage is under investigation in respect of or has been charged or convicted of any such offence, details have also been given on the application form *. I give my explicit consent to the Society using the information that I have provided in this respect (the sensitive personal information) for the purpose of deciding whether or not to offer me a mortgage. I understand that the Society will keep a record of the sensitive personal information in its filing systems. 

On making further enquiries we found a further misleading declaration on the building societies commercial mortgage application form stating:

If  I have disclosed that I have ever been convicted of, or cautioned for (or charged but not yet tried with) fraud, arson, robbery or any other criminal offence (other than a motoring offence), I give my explicit consent to the Society using the information that I have provided in this respect (the *sensitive personal information) for the purpose of deciding whether or not to offer a mortgage. I understand that the Society will keep a record of this information in its filing systems. I also give my explicit consent to the Society disclosing the sensitive personal information to insurers in order they might consider whether to offer insurance and, if so, upon what terms.

We made several attempts to contact the building society to raise our concerns regarding the declarations but received no response. As a result of this we took the decision to seek advice and guidance from the Information Commissioners Office (ICO).

After investigating the matter, the ICO concluded that the declarations did not take account of the Rehabilitation of Offenders Act (ROA) 1974 and wrote to the building society, advising them of this.

The building society agreed to review the wording of the declaration on their corporate ‘buy to let’ and commercial application forms to ensure they fell in line with the ROA.

The building society has now amalgamated their corporate ‘buy to let’ and commercial application forms, removing the declarations and any reference to criminal records.

Lessons

This case demonstrates how building societies may believe they are doing the right thing in practice but, if they don’t have very clear declarations in place, then this can cause confusion and could lead individuals to over-disclose. This could result in building societies holding information they are not legally entitled to hold and contravening the ROA. Furthermore, given the building society in question has removed any reference to criminal records, it raises the question as to whether others should follow suit.

Links

• Practical information: Getting a mortgage

Notes about this case study

This case study relates to Unlock’s work with other organisations.

Names and details have been changed to protect the identity of those involved.

We were recently contacted by an individual who had taken out a home insurance policy and was concerned that he had not fully disclosed his convictions. His confusion had arisen due to a declaration form that he had been sent with his policy documents. This stated:

You have confirmed that you, or any person to be insured by this policy, have never been convicted of or cautioned for (or charged but not yet tried with) any criminal offence other than motoring convictions.

We reassured the individual that whilst it was difficult to prevent an insurer asking an open question about convictions, an applicant has the legal right to answer in the negative in respect of any spent convictions.

We contacted the insurer to point out that under the Rehabilitation of Offenders Act, individuals were only required to disclose unspent convictions and therefore, in our opinion, the declaration could be considered misleading.

Having received no response from the insurer, we felt that we had no option other than to raise our concerns with the Information Commissioners Office (ICO).

The ICO investigated the matter and confirmed that in their opinion the insurance company had not contravened the Data Protection Act. They believed that as the declaration was merely used to confirm the details that an applicant had provided to them, there was no evidence that they had processed this data in a way which did not comply with the Data Protection Act.

The insurance company had explained to the ICO that only unspent convictions were taken into account and recorded. If an individual were to disclose a spent conviction in error, this would always be disregarded.

However, the ICO felt that the declaration could lead to individuals doubting the information they needed to provide and the ICO suggested that they may wish to consider improving the wording in their declaration form to avoid any confusion.

The insurer has offered to provide enhanced training to all its front-line staff to ensure they are aware of the differences between spent and unspent convictions. However, they did not feel that they were able to devote the time or money to improving the wording on their declaration form.

We are continuing to work on this case to seek improvements in the wording of the declaration.

Lessons

This case demonstrates how organisations may believe that they are doing the right thing in practice (for example only taking into account unspent convictions) but, if they don’t have very clear questions and declarations in place, then this can cause confusion and could lead individuals to over-disclose.

Links

• We have information regarding insurance and convictions

Notes about this case study

This case study relates to Unlock’s work with organisations.

Names and details have been changed to protect the identity of those involved.

We were recently contacted by an individual who was considering applying for a job as a manager in a charity bookshop but had been concerned about the level of criminal record check that the company had requested. They stated that:

xxxx takes its obligation to protect the rights of children and vulnerable people very seriously; therefore the successful candidate for this post will be subject to extensive background checking, including a Disclosure and Barring Service check (DBS), as this role involves unsupervised access to the above-mentioned groups.

The potential applicant had contacted the shop to request further information about the ‘unsupervised access’ element of the job and was told that:

I can confirm that the shop manager’s role does not involve looking after children. It does, however, involve managing young volunteers some of whom can be as young as 14, and a diverse range of adult volunteers, some of whom are vulnerable adults with specific needs. Hence the reason that this wording is put in the advert, to advise applicants that we require all shop staff to undergo a DBS check.

We sought guidance from the Disclosure and Barring Service who confirmed that in order to carry out an enhanced criminal record check an applicant would need to be in “regulated activity” with children. The role would need to involve supervising/caring for children frequently (one a week or more), intensively (four or more times in a 30 day period) or overnight (between 2am and 6am). The DBS stated that an organisation would not be able to state that this ‘might happen’.

We contacted the bookshop to raise our concerns with them.

The bookshop replied to us and confirmed that their shops had a significant number of volunteers under the age of 18 many of whom would be working towards the Duke of Edinburgh awards. In addition to this, several local schools have placement schemes running in the bookshop. Shop managers would therefore be responsible for supervising these under 18’s.

Lessons

This case demonstrates how, on the face of it, employers often assume that an enhanced check is the right one to do, yet it’s often more complex than that and it depends on the specific details of the role.

Links

• We have information regarding criminal record checks for employment.

Notes about this case study

This case study relates to Unlock’s work with organisations.

Names and details have been changed to protect the identity of those involved.

William contacted us for some advice after the company that he’d applied to work for had revoked his job offer upon receipt of his standard Disclosure and Barring Service check.

William told us that the job he’d applied for involved selling IT equipment to financial institutions. He had been told that it was not a role regulated by the Financial Conduct Authority (FCA) and as a result of this, he hadn’t felt that he needed to disclose his spent conviction.

He explained to us that he’d been surprised when he was told that the company would be carrying out a standard DBS check. However, as his conviction dated back to 2000 and had only resulted in a fine, he’d assumed that it would be filtered from the certificate and wouldn’t be disclosed.

William told us that when he received his certificate, his conviction had been revealed and when he handed it over to his future employers, they had immediately withdrawn the job offer.

We explained to William that unfortunately his conviction would not be eligible for filtering as, despite having only one conviction, he had six counts to it. However, we suggested that it was highly likely that the company had carried out an incorrect level of check and that he should try to appeal the company’s decision.

We advised him to explain to the company that the only reason he’d not disclosed his conviction was because he’d believed that if a criminal record check were to be done, it would be a basic one which would not disclose his spent conviction. We provided William with a letter in support of his appeal setting out the reasons why a standard check for his job was ineligible.

William contacted us a few days later to let us know that he’d had a meeting with the CEO of the company who’d taken away the information provided by us. The CEO told William that he intended to pass the information to the organisation’s legal team and ask them to look into the validity of requesting standard DBS checks for non-regulated roles. William was quite pessimistic about how rigorously the legal team would look into the issue.

The following week William got in touch again to say that he’d just been telephoned by the CEO who’d offered him his job back. The CEO told William that many of their customers were FCA regulated and they asked that any sub-contractors have criminal record checks. The company had been under the impression that these checks needed to be standard DBS checks. However, in light of the information supplied by Unlock and research carried out by their own legal team, they’d come to the conclusion that basic checks were the correct level.

William told us:

I couldn’t believe it when the CEO told me that after considering the information presented, he wanted to offer me the job. He assured me that the DBS certificate would be destroyed and he couldn’t apologise enough for what had happened. Speaking to the advisor at Unlock gave me the confidence to raise the issue with the company and the information provided by Unlock helped me to back up my argument.

Lessons

Many employers struggle to determine the correct level of criminal record check they need to undertake for their employees and some, as in this case, can be led by their customer’s requirements rather than what they are legally entitled to do. However, once they’re made aware of their legal responsibilities many seek to put changes in place.

Links

• Criminal record checks for employment 
• Can you help us to collect examples of employers carrying out incorrect levels of checks

Notes about this case study

This case study relates to Unlock’s helpline and our employment project.

Names and details have been changed to protect the identity of those involved.

Terence contacted our helpline when he needed some advice on behalf of himself and his partner.

Following his conviction, Terence had been placed on the sex offenders register. As part of his notification requirements, he was required to notify the public protection officer at his local police station of any new relationships.

Shortly after being introduced to Lauren through friends, Terence disclosed his conviction to her. He told us that he was delighted that his disclosure appeared to make no difference to her and she agreed to go with him to the local police station in order that they could meet the public protection officer together.

Terence explained that although the police officer asked a number of intrusive questions, on the whole, he was pleased that Terence had been totally honest with Lauren about his past. Terence told us that as they were finishing the meeting, the police officer asked Lauren if she had a job and she mentioned that she worked as a receptionist at a local school. This didn’t appear to give the police officer any cause for concern.

However, when Lauren arrived at work the following day she was asked to immediately go and see her line manager. He told her that he’d received a call from the local police station informing him that Lauren was in a relationship with ‘somebody on the sex offenders register’. The school believed that as a result of new ‘disqualification by association’ regulations, Lauren had a duty to inform the school of this new relationship and had acted dishonestly in not disclosing it to them. She was suspended until a full investigation had been undertaken.

Terence told us how surprised he was that the police officer hadn’t told them at the meeting that he would be contacting Lauren’s employers. If he had, Lauren would have had the opportunity to speak with her line manager and explain the situation to him. Neither Terence nor Lauren had heard of ‘disqualification by association’ and Terence asked whether we could give him any information about it.

We explained to Terence that as Lauren was not employed as a teacher at the school, and as the couple did not live together, then the ‘disqualification by association’ regulations were not applicable to her. We were able to provide Terence with links to the relevant legislation and offered to assist Lauren with any appeal to the school.

The local authority’s designated officer started his investigation into the case and we assisted Lauren in writing a letter to him which set out the reasons why she did not believe that legally she had to disclose her relationship with Terence to the school and that as she did not work as a teacher and did not currently live with Terence she could not be disqualified by association. As the investigation continued, Lauren became increasingly anxious about the time it was taking and what impact this investigation might have on her ability to secure work in the future.

We kept in regular contact with Terence and Lauren and after several months Lauren asked whether we could help her to write a letter to the school setting out her intention to resign from her job if the school would give her an assurance that the investigation by the local authority was dropped and no record of it would be added to her employment history. The school agreed to these terms.

Lauren is currently looking for work and worries that the police will choose to disclose her relationship with Terence to a new employer. She has been invited to attend several interviews but has been asked “Why did you leave your previous job?”. This flags up the issue with Terence and the SOR and her applications have not been taken any further.

We have provided Terence and Lauren with details of a solicitor who is currently in the process of advising them of any legal options that may be available to them.

Lessons

This case highlights how new legislation can often provoke knee jerk reactions from employers who will take a course of action without fully considering whether legislation applies in every situation.

It’s likely that after fully investigating the case, the Local Authority Designated Officer would have found in Lauren’s favour. However, for some people, the stress of going through these types of investigations is too much and they choose to walk away instead.

Links

• Childcare Disqualification Regulations – primary school teachers, nursery staff and others – Disqualified by association

Notes about this case study

This case study relates to Unlock’s helpline and our policy work on scrapping the disqualification by association regulations.

Names and details have been changed to protect the identity of those involved.