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For people with criminal records
For people with criminal records

Archives: Case Studies

Kabir – Confirmation from the ICO that my spent conviction couldn’t be used by an employer when deciding not to employ me

In early 2018, Kabir was offered a job working as a Sales Consultant for an IT company based in Wales. As part of the terms and conditions of his employment, Kabir was told that he would need a basic criminal record check which would be carried out by a DBS Responsible Organisation (RO).

Although Kabir had been convicted of an offence in 2014 which had resulted in a community order, this was spent under the Rehabilitation of Offenders Act and Kabir had not disclosed it to his employer. He was not concerned therefore about the basic check as he knew that his certificate would come back ‘blank’.

Two weeks later, Kabir was asked to attend a meeting with one of his senior managers who confirmed that they had received his basic criminal record. They also told him that they would be revoking his job offer as he had failed to disclose a conviction which had appeared on the basic certificate. Kabir asked for a copy of the certificate, certain that a mistake had been made.

It was at this point that Kabir contacted the our helpline for further advice.

After reviewing the certificate, we were able to confirm that the request for his basic certificate had been made to Disclosure Scotland rather than the Disclosure and Barring Service (DBS). We explained that as of 1st January 2018, Disclosure Scotland were responsible for carrying out basic checks for anybody applying for a job in Scotland, whilst the DBS undertook checks for individuals working in England and Wales. Disclosure Scotland produce certificates using Scottish law whilst the DBS use English law.

Although Kabir’s community order was spent in England and Wales after 2 years, in Scotland it would take five years before it was spent, which was the reason why it had been disclosed on his certificate. We suggested that Kabir apply to the DBS for his own basic certificate (which would come back without the conviction being shown). Once he’d received this, he should then appeal the company’s decision to revoke the job offer.

Kabir took our advice and appealed the organisations decision, providing them with a copy of his new DBS basic certificate. After 2.5 months, the organisation contacted Kabir to confirm that the decision to dismiss him had been upheld.

Kabir contacted Unlock again and asked whether we could help him resolve the matter.

We wrote several times to the organisation highlighting that Kabir’s conviction was spent under the Rehabilitation of Offenders Act and should be disregarded. We explained that in our opinion there had been a breach of the Data Protection Act as the company had:

  1. Obtained information relating to a spent conviction, and
  2. Processed the information unlawfully by using it as a reason to disadvantage Kabir.

Two months later the organisation responded to us stating:

“We acknowledge and appreciate that the previous criminal convictions are spent in England and Wales, the checks nevertheless revealed the fact that Mr xxx has had criminal convictions and that is a material consideration in connection with a decision to employ him. Ultimately, he was considered unsuitable for the role as a result and the dismissal was made.”

We referred the case to the Information Commissioners Office (ICO) who, having considered our complaint ruled that:

“The organisation has acknowledged that the incorrect organisation was used to obtain this information. However, as it is still taking your client’s spent conviction into account and refusing to reinstate him in his job, we are of the view that they have infringed upon Principles (a) and (c) of the General Data Protection Regulations.”

The ICO wrote to the organisation providing advice and guidance to ensure that a similar situation did not occur in the future.

They also confirmed to Kabir that under Articles 79 and 82 of the GDPR, individuals have the right to take proceedings to court if they believe their information rights have been infringed.

“If a court is satisfied that the individuals rights have been infringed and an individual has suffered material or non-material damage (such as distress) as a result of an infringement, they may also be able to receive compensation from the controller or processor.”

Kabir is currently seeking legal advice regarding a claim for compensation.

Lessons

There have been several failings in this case initially with the Responsible Organisation requesting information from Disclosure Scotland when it should have requested this through the DBS and then his employer taking this excessive information into account when making an employment decision.

Principle (a) of the GDPR requires that the processing of data must be fair and cannot be against the law. In this case, the employer has taken into account a spent conviction (obtained inappropriately) which is unlawful under the Rehabilitation of Offenders Act. As a result, this makes the processing of this data unlawful under data protection law.

Principle (c) requires organisations to ensure that the personal data they are processing is adequate, relevant and limited to what is necessary. Kabir’s employers were unable to demonstrate why it was proportionate to obtain information relating to a spent conviction nor why it continued to process this data.

Links

Notes about this case study

This case study relates to Unlock’s case work.

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

Liam – I successfully appealed my employer’s decision to dismiss me due to ‘unsatisfactory conduct’

Liam contacted our helpline after his employer dismissed him for failing to disclose his unspent conviction. Liam explained to us that he’d originally been employed on a temporary basis through a recruitment agency before being taken on by the company approximately 6 months later as a permanent member of staff.

When he’d signed up with the agency, he had disclosed his unspent conviction for assault occasioning actual bodily harm (ABH) and assumed that this information would be passed onto any employer he’d be working for. He was pleased to find that his unspent conviction didn’t appear to be a barrier to him getting into work and he was offered a temporary position very quickly. When this position became permanent, he didn’t find it strange that he wasn’t asked about his criminal record.

Soon after starting his permanent role, Liam was told that he would need a basic DBS check. He confirmed to his employer that, as his conviction for ABH wouldn’t be spent until 2020, it would still appear on the certificate.

Liam’s employer received the certificate just before Christmas but it wasn’t until approximately 8 weeks later that he was asked to attend a meeting with his line manager and HR manager to discuss “the non-disclosure of his criminal record”. His employers stated that due to the nature of his offence, they felt it was likely that they may not be able to continue with his employment.

Following the meeting, Liam was informed that his employment was being terminated due to:

Unsatisfactory conduct during your probationary period

Our helpline advisor explained to Liam that the only option open to him would be to appeal his employer’s decision. We offered to assist him in writing a letter of appeal. The letter highlighted how:

  1. Liam had disclosed his conviction to the recruitment agency who had initially employed him. He had no reason to doubt that they would not pass this information on to the employer. In addition to this, Liam had disclosed to the employer at the time his basic DBS check was being applied for.
  2. If the employer truly believed that Liam’s role and the nature of his offence made him unsuitable to work for the company, why did they allow him to continue working for 8 weeks following receipt of his DBS certificate.
  3. Liam was surprised to learn that he was being dismissed for unsatisfactory conduct as his understanding of this would be that:
    • He was incapable of doing his job to the required standard.
    • He was capable, but unwilling to do his job properly.
    • He had committed some form of misconduct.

None of these points were applicable to him.

On receipt of his letter, Liam was asked to attend an appeal hearing where he once again went through the point’s he’d raised in his letter. He made it clear to his employers that he deeply regretted the decisions he’d made which led to his conviction and that he’d really enjoyed the time he’d spent working for them.

Following the hearing, Liam was told that his employer would be reinstating him.

Liam commented:

“At the end of the meeting my employers accepted the fact that they were in the wrong for terminating my contract on the grounds of unsatisfactory conduct and offered me my job back. This wouldn’t have been possible without Unlock’s help and I feel I owe you.”

Lessons

This case demonstrates that if you are dismissed by your employer, for whatever reason, it’s not a foregone conclusion that you can’t successfully appeal their decision. Although it may not be wise to assume that a recruitment agency will pass criminal record information onto an employer, in this case Liam had also disclosed it prior to his employer carrying out a formal criminal record check.

Where you believe you’ve done nothing wrong, then you have nothing to lose by appealing an employer’s decision to dismiss you. In some cases, you may be able to bring a case of wrongful dismissal against your employer at an Employment Tribunal.

Links

Notes about this case study 

This case study relates to Unlock’s case work.

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

Teresa – I challenged my employers decision following disclosure of a filtered conviction

Teresa contacted our helpline as she needed advice following a meeting with her employers to discuss an anonymous ‘tip off’ they’d received that she was “a drug addict with convictions for drug offences”.

Teresa explained that in the past she had taken drugs and had also received a caution for possession. However, as her caution had been eligible for filtering from her enhanced DBS certificate, she hadn’t disclosed it to her employer.

During the meeting, Teresa’s employers said that they felt she should have disclosed any cautions or convictions to them at the start of her employment and they would be referring the matter to the local safeguarding team. They told her that her criminal record was likely to bring the organisation into disrepute if customers/clients became aware of it. Feeling pressurised to ‘tell the truth’, she disclosed her caution for a drug offence 13 years previously.

Teresa was extremely worried about her job and also being referred to the safeguarding team and believed she had been dealt with unfairly. She wanted clarification that her employers had acted unlawfully in asking her about her filtered caution.

Our advisor confirmed that as her caution had been filtered from her enhanced DBS certificate and was therefore ‘protected’, she had done nothing wrong by not disclosing it. We explained that even though she had disclosed it, her employers should have immediately disregarded it. By keeping a record of this caution, they could potentially be breaching the Data Protection Act 2018.

Teresa contacted us several weeks later to let us know that she had kept her job.

Teresa said:

“Having been given the correct information and advice from Unlock, I felt a lot more confident about the situation and knew that I had to stand up for myself. I went back to my employers to discuss the matter and the situation has now been rectified.”

Lessons

This case demonstrates how employers can often react very quickly to information they come across without considering whether it’s something they should be taking into account. In this case, Teresa’s caution should have been disregarded and no further action taken.

However, with the correct information and advice, it is possible to challenge employers and get them to deal appropriately with criminal record data.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

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

Sandra – Using a self-disclosure statement helped my daughter get a college place

Sandra contacted our helpline on behalf of her daughter who was experiencing difficulties in getting onto a college course due to her criminal record.

Sandra explained that due to the nature of the course, her daughter had needed to apply for an enhanced DBS check which had disclosed that when she was aged 14, she had received a conviction and given a referral order. She’d been told by her tutor that due to her conviction and the risk she posed, she would not now be accepted onto the course and would need to find an alternative.

Sandra had arranged a meeting at the college for herself and her daughter to discuss the matter but wanted some advice on how to successfully appeal the college’s decision.

We advised Sandra that if her daughter applies for any course which would require an enhanced DBS check then she will need to disclose her conviction when asked (this is often at the point of registration). We suggested that in readiness for the meeting with the college, her daughter put together a self-disclosure statement which often makes it easier when explaining a criminal record. This statement should include details of:

  • The offence and the circumstances surrounding it
  • What makes her suitable for the course and why she doesn’t think that she poses any kind of risk
  • How she has moved on since the conviction.

We also advised that she try to get as much supporting evidence as possible to demonstrate that she wasn’t a high risk and should be allowed to stay on the course.

A couple of weeks later, Sandra contacted us again to explain that although her daughter’s appeal had been unsuccessful, she had used the advice we’d given her to apply for the same course at another college and had been accepted onto that course.

Lessons

This case demonstrates why it’s worth applying to other colleges/universities when you’ve been turned down by another. Different establishments have different criteria and some are more open to offering places to people who have a criminal record.

Talking about convictions can be difficult and using a disclosure statement can often alleviate some of the stress and anxiety.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

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

Abbie – How I challenged an enforced Subject Access Request (SAR) and kept my job

Abbie contacted our helpline for some advice after a director of the company she worked for had become aware of her convictions following a ‘Google’ search and had asked her to provide ‘proof’ that her convictions were spent.

Abbie explained that her director had become aware of the online information through another work colleague and had called her into a meeting to discuss them. Believing that she had no option but to ‘come clean’, she disclosed her convictions to the director but explained that as they were spent under the Rehabilitation of Offenders Act, legally, she didn’t need to disclose them, and they should be disregarded.

Abbie stated that her director was unhappy with her respons,e telling her that he felt she’d been dishonest. He asked that she get a copy of her Subject Access Request (SAR), thinking that would prove that her convictions were spent.

We advised Abbie that it was now a criminal offence for an employer to force her to do an SAR. However, they could carry out a basic DBS check which would come back ‘clean’, proving that her convictions were spent.

Abbie later informed us that she’d had a further meeting with her employers and given them Unlock’s information on enforced SAR. They requested a basic DBS check and took no further action when they realised that her convictions were spent.

Lessons

This case demonstrates how some employers still believe that they can ask someone to show them their SAR, even though this is a criminal offence (referred to as enforced subject access). If an employer requires formal confirmation of an individual’s cautions or convictions then the correct procedure is to request the appropriate criminal record check.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

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

Challenging a misleading question on a Council housing reference form

We were contacted recently by an individual who was concerned about the criminal record question being asked on a Council’s housing reference form and the fact that the Council were asking applicants to give authorisation to the Council to carry out a police check.

The question relating to criminal records asked:

“Have you been convicted of a criminal offence?”

The ‘Authorisation for police check’ form stated:

“To request/receive from the police information of any incidents, convictions, cautions or any other disposal/s or charges regarding myself, in connection with my application for housing. (Subject to the provisions of the Rehabilitation of Offenders Act 1974”

The question relating to criminal records did not make it clear that applicants were only required to disclose unspent convictions and the request for a police check was not an appropriate way of checking an individual’s criminal record.

We contacted the Council to raise the following concerns:

  1. Criminal record question – The criminal record question was misleading as housing applicants are only legally required to disclose unspent convictions. There was a risk that applicants could disclose spent convictions, resulting in the Council taking into account information they are not legally allowed to consider.
  2. Police check form – The Council would be entitled to request a basic DBS check which would disclose any unspent convictions. However, carrying out a police check is likely to be excessive and could potentially disclose more information than was necessary.

As we received no response from the Council, we had no option but to forward our concerns to the Information Commissioners Office (ICO) as we believed the Council could potentially be in breach of the Data Protection Act 2018 by processing and storing data unlawfully.

The ICO encouraged the Council to engage with us to assist them in amending their housing reference form. They were advised by the ICO that a police check would not be necessary and could be deemed excessive and they have removed this request from their application process.

The amended question relating to criminal records now reads:

“Do you have any unspent convictions?”

The amended question is clear and concise and applicants are now aware that they don’t need to disclose spent convictions.

Lessons

This case demonstrates how Councils can often ask misleading questions on housing application forms. However, the ICO are very clear that under data protection legislation organisations can only process and store data that they are legally entitled to have access to.

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.

Successfully challenging a misleading question on a college application form

We were recently contacted by an individual who was concerned about a question relating to criminal records on a generic college application form. This asked:

“Do you have any criminal convictions, cautions, reprimands, final warnings or prosecutions pending?”

The individual felt that the college should be a lot more specific about what they needed an applicant to disclose as the current wording could potentially lead an individual to disclose more than they needed to.

We contacted the college to raise the following concerns:

  1. The college’s current approach does not appear to be complaint with the General Data Protection Regulation (GDPR) as it doesn’t distinguish between DBS and non-DBS courses.
  2. The criminal record question was potentially misleading and gave very little guidance about what applicants needed to disclose for which course. This could lead applicants to disclose convictions which they didn’t need to, specifically those which were spent under the Rehabilitation of Offenders Act.
  3. There was a risk that the college could take something into account which they were not legally allowed to consider which could potentially lead to action being taken against them under data protection legislation.

The college informed us that they had been reviewing their application form as they were aware that the wording was possibly inaccurate. The review resulted in their amending their criminal record question to:

“Do you have any convictions that are not yet spent under the Rehabilitation of Offenders Act 1974?  

Do you have any convictions, cautions, reprimands or final warnings which are spent but not protected as defined by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (as amended in 2013)? (For courses that involve working with children or vulnerable adults)”.

Lessons

This case demonstrates how colleges are often unclear about what questions they can 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.

Julia – Unlock’s disclosure calculator gave me information which I’d struggled to find on any government website

After being the victim of domestic violence, Julia was moved to a women’s refuge. She was working for an agency at the time but, following this incident, didn’t feel that she was in a fit state to attend work. Despite contacting the agency prior to the start of her shift and letting them know that she couldn’t work, she was dismissed.

Having no job and no money and still trying to deal with the impact of the domestic violence incident, Julia stole money from a relative. When confronted she agreed to pay it back as soon as she’d got a job. Her relative reported the incident to the police and Julia received a conviction resulting in a community order.

Still struggling to find a job after three years, a friend she’d met whilst doing her community service mentioned to Julia that she didn’t think she should be disclosing her conviction still as it was probably spent under the Rehabilitation of Offenders Act.

After searching online for further information Julia eventually came across Unlock’s disclosure calculator and discovered that her conviction was spent and no longer needed to be disclosed.

Julia said:

“I’d been trying to find out whether my conviction was spent for ages and I couldn’t find what I needed to know on any government website. After I’d found Unlock’s disclosure calculator, I got the information in under 5 minutes. I thought I had to disclose my conviction for 5 years and I’ve avoided applying for any job which asked for criminal record checks. Now I know that I can honestly answer ‘no’ to the question that asks about unspent convictions.”

Lessons

As Julia discovered, out of date information given to her by her probation officer meant that she’d been disclosing her conviction for a lot longer than was necessary. For many people with convictions, government websites are the first place they look when trying to find accurate and up to date information but are often unable to find what they’re looking for. It’s for this reason that Unlock developed the disclosure calculator and we encourage websites such as gov.uk to link to the tool.

Links

Notes about this case study 

This case study relates to our disclosure calculator.

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

Olivia – Unlock’s disclosure calculator helped me in the family court

Keen to support her husband in a custody case where he was trying to gain access to his children from a previous relationship, Olivia was surprised when her criminal record was mentioned in the case in the Family Court.

Despite explaining that she hadn’t been in any trouble for over five years and that her conviction was spent under the Rehabilitation of Offenders Act, the Court asked her to provide proof of this. Wanting to make sure that her conviction was spent and trying to establish how she could get proof of this, Olivia contacted her previous probation officer.

Olivia’s probation officer explained that she could apply for a basic criminal record check at a cost of £25 or she could try using Unlock’s free online disclosure calculator. The probation officer suggested that Olivia print off the results and then give a copy of the court.

Olivia gave the court a copy of her Police National Computer record (which she already had, and which gave details of the offence, disposal and date) together with the printed results from the calculator which confirmed that her conviction was spent.

Oliva said:

“The disclosure calculator is a great tool that provided me with easy access to information I thought I may not be able to get. The court were more than happy with the print out I gave them and how quickly I’d been able to provide it.”

Lessons

The disclosure calculator does not provide an official record of whether or not a conviction is spent but can give individuals the confidence to know what they need to disclose. In this case, a combination of her Subject Access Request from ACRO and the calculator results were enough to give the court the evidence they needed.

Links

Notes about this case study 

This case study relates to our disclosure calculator.

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

Dan – theInformationHub site made me realise how little I knew about criminal records

Dan thought he had a good understanding of criminal records. He also felt that more and more employers had started to ask about criminal records which had made it harder for him to secure a job.

Although his conviction was very old, Dan was also registered disabled. His disability didn’t prevent him from working, but he felt that combined with his criminal record, it made him a lot less attractive to employers.

Searching the internet one evening looking for organisations that support people with convictions to get back into work, Dan came across Unlock’s InformationHub. Reading through some of the pages, he was surprised to learn that although his conviction remained on the Police National Computer (PNC), he didn’t need to disclose it for the majority of jobs as it was spent under the Rehabilitation of Offenders Act.

Dan was delighted to read this and although he wasn’t sure what difference it would make to him, he felt confident that it would help him to determine whether it was his criminal record or his disability that was stopping him from getting a job.

Dan said:

“The informationhub site is invaluable to people like me who are disabled. Although I’m able to get around, many people rely on online information. Considering the site is self-financed it is very well run, and the information easy to understand. I like the fact that there are downloadable versions of a lot of the pages”.

Lessons

Work done by organisations like Unlock means that legislation does change (for example changes to the ROA in 2014) and the rules around disclosure are different now to what they were when Dan was originally convicted. As a consequence, Dan had been disclosing his convictions for a lot longer than was necessary.

Whilst people with disabilities are protected under the Equalities Act, people with a criminal record are not. Understanding the reason why he’s been refused a job may assist Dan in taking legal action if it’s found that the reason for the refusal is due to his disability.

Links

Notes about this case study

This case study relates to our information site.

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

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