Thea contacted our helpline for some advice in completing a university application form. Thea explained that she had two old cautions which were eligible for filtering (and so would not appear on her enhanced DBS certificate). However, the wording of the university’s statement and question on their application form implied that she needed to disclose these old cautions and she was concerned that she would be refused a place if she did so.

The ‘Criminal Record Disclosure and Professional Registration Information” form that Thea was referring to stated:

Statement – “Your chosen route of study is exempt from the provisions of Section 4 (2) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. This means that you must declare ALL criminal convictions, cautions, reprimands or warnings, even if they are spent (e.g. you think they have been removed from the records or were juvenile offences), and include those outside of the United Kingdom.”

Question – “Have you ever received any cautions, convictions, reprimands or warnings in the UK or any other country? Has a Court or Court Martial ever convicted you of any offence or are you currently bound over?”

We explained to Thea that as her cautions would not appear on her enhanced DBS certificate then, legally, she didn’t need to disclose them to the university. We agreed to contact the university with recommendations on how to improve the statement and question in order that it complied with data protection legislation and also to ensure that applicants with a criminal record were clear about what they needed (and what they didn’t need) to disclose.

Despite contacting the university on a number of occasions, we received no response and felt that the only option available to us was to raise our concerns with the Information Commissioners Office (ICO).

The ICO agreed that the statement and question did not comply with General Data Protection Regulations (GDPR) and requested that the university review their processes and update the wording on their application forms to reflect that protected cautions/convictions did not need to be disclosed.

The university subsequently contacted us for our advice on improving their application forms. Their statement now makes it very clear that applicants do not need to disclose any protected cautions and/or conviction and the question now states:

Question – “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)?“

Lessons

Universities who offer courses in health and social care will be aware that these courses are exempt from the Rehabilitation of Offenders Act. However, there can sometimes be confusion around the need for applicants to disclose cautions/convictions which are ‘protected’.

Without any clear guidance, applicants may over disclose their criminal record which could mean that they are refused a place on a course and the university would hold information which they’re not legally entitled to.

As this case demonstrates, challenging the misleading statement and question ensured that future applicants are protected by data protection legislation and that the university is following this.

Links

• Practical information: Applying to university
• Practical information: Filtering of spent cautions/convictions – A simple guide

Notes about this case study

This case study relates to Unlock’s casework

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

Published March 2020

Darren contacted our helpline after a job he’d been offered with a local council had been withdrawn following receipt of an enhanced Disclosure and Barring Service check.

Although Darren’s convictions were all spent (from 30 years ago) and minor, as there was more than one, they were not eligible to be removed (or ‘filtered’) from his enhanced check.

From the copy of the job description Darren provided us with, and advice he’d received from the DBS, we were of the opinion that the role he’d applied for was only eligible for a basic check and the council had therefore acted unlawfully in carrying out an enhanced check. Had the correct level of check been completed, then Darren’s spent convictions would not have been disclosed and he would have kept his job.

We contacted the council to highlight our concerns around eligibility and that under Section 123 of the Police Act 1997 it states:

“A person commits an offence if he knowingly makes a false statement for the purpose of obtaining or enabling another person to obtain a certificate under this Part”.

We also alerted the council to four other jobs being advertised on their site which asked for enhanced checks despite, in our view, only being eligible for a basic.

The council undertook its own investigation into eligibility and shared its findings with us. A comment made by a human resources advisor stated:

“Although the DBS is saying we only need a basic check, if there may be opportunities that the team may have contact with children or vulnerable adults in their work and the fact that the majority of the team currently have enhanced DBS checks, then it may be a good idea to stay at this level.

For example, a car parking officer may have to approach a car where a young child has been left alone”.

We went back to the council to confirm that approaching a car which has young children in wouldn’t make this type of role eligible for an enhanced check.

The council’s HR manager telephoned us a few weeks later to thank us for raising our concerns about the employment of people with convictions, especially around the recruitment process. The manager confirmed that as a result of our information and advice. the council would be carrying out a thorough review of their recruitment and selection process, and we’ll be following this up with them.

The HR manager also asked for further information around the Ban the Box campaign which removes the tick box on application forms which ask about criminal records as this was something the council would like to consider implementing at some point in the future.

Lessons

As this case demonstrates, a lack of understanding around eligibility means that many organisations (including large ones like local councils) sometimes assume that they can do whatever criminal record checks they wish to rather than ones they are lawfully entitled to do.

However, having the opportunity to discuss good recruitment practice with an employer can have a really positive impact.

Links

• Practical information: Eligibility for standard and enhanced checks
• Practical information: Challenging an ineligible DBS check

Notes about this case study

This case study relates to Unlock’s casework.

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

Published September 2019

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

• GDPR and data protection – Guidance for individuals

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.

Clive contacted our helpline for some advice after he’d received a letter from the Disclosure and Barring Service stating that they were considering putting him on one or both barred lists. The DBS believed that he was going to be working in regulated activity and, due to his previous conviction, needed to carry out an investigation.

Clive explained that he’d been convicted of a serious offence in the early 1990’s for which he’d served a prison sentence. This had never caused him any problems in the past and he had been working successfully for a non-profit organisation for many years.

It appeared that the barring letter from the DBS had arisen after Clive had applied to study for a short course at university. Although this was a counselling course, Clive had chosen to study it to expand his workplace knowledge and had no intention of working directly with children or vulnerable adults. Clive was extremely concerned that if he were to be placed on either barred list, this could impact negatively on both his employment and the reputation of the organisation he worked for.

We explained to Clive that the DBS barring letter had come about as a result of the university applying for an enhanced DBS check. Having reviewed the course contents, we were of the opinion that the enhanced check was ineligible as the course was based purely on theory and involved no placements. We recommended to Clive that he make representation to the DBS and to assist him with this, we set out the details of what he needed to cover in his letter. This included:

• An explanation of his job role, making it very clear that he did not work in any type of regulated activity.
• His belief that the enhanced DBS check had been ineligible and that without the check having been undertaken, the ‘minded to bar’ process would not have started.
• An explanation of his offending behaviour and the circumstances surrounding it.
• Details of what he’d been doing since he’d received his conviction, for example details about work, further study, family relationships etc.

We also advised Clive to provide the DBS with references, both personal and work related.

Clive submitted his representation to the DBS along with letters of support from several well respected individuals. A couple of months later, Clive received confirmation from the DBS that they would not be placing him on either the adult or children’s barred list.

Lessons

When considering placing somebody on the barred list, the DBS will carefully review all the evidence put before them. As Clive’s case demonstrates where there is no good reason to bar somebody, then the DBS won’t. However, all the time the investigation is being carried out, individuals will quite rightly be extremely anxious about the result especially as in this case, the investigation arose from an ineligible check.

Links

• Barring (Children’s Barred List and Adult’s Barred List)
• DBS Barring – Representations, reviews and appeals

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.

Dennis contacted our helpline because his employer intended to carry out an enhanced Disclosure & Barring Service (DBS) check for his job. Dennis did believe his job was eligible for an enhanced check. Before the check was submitted, Dennis had disclosed details of his criminal record and was suspended by his employer.

Dennis as a driver for an out of hours doctor’s service. Dennis stated that his job involved driving doctors to their appointments and waiting whilst they attended to a patient. On occasion, it was necessary for him to act as a chaperone whilst the doctor carried out a procedure on the patient but this had only happened twice in the previous year.

On reading the job description, we agreed that his job would not be eligible for an enhanced DBS check. To be eligible, he would need to be performing chaperone duties once a week or more, or at least four days in a 30 day period. In any event, Dennis would be accompanied at all times by a medical professional who had been DBS checked and had overall responsibility for the patient. We provided Dennis with information and advice on challenging the check and offered to speak with his employer.

Three weeks later, Dennis contacted us to confirm that he had raised the question of eligibility with his employer. Although they had conducted a review of his case and lifted his suspension, they still wanted to proceed with the enhanced DBS check.

We advised Dennis to contact his Employment Relations Manager, outlining that:

1. There was no legal basis for an enhanced DBS check to be conducted on his driver’s role; and
2. If it were found that an enhanced DBS check was not necessary, then the employer could be holding information which they would not legally be entitled to hold and could have action taken against them under the Data Protection Act.

The Employment Relations Manager replied stating that following further investigation and advice from DBS they would no longer be carrying out the enhanced DBS check as a chaperone is:

At all times accompanied by a medical professional who has undertaken an enhanced disclosure check themselves”

The employer intended to revise their recruitment policy to reflect this.

Lessons

This case demonstrates how employers can sometimes wrongly believe higher level checks are required due to their client groups. Ineligible checks may result in an employer holding information that they are not legally entitled to hold.

Having an understanding of criminal record checks means that it’s possible to successfully challenge employers who may be looking to carry out ineligible checks. Any employer is permitted to carry out a basic criminal record check, but if your conviction is spent (as in Dennis’ case) you would not need to disclose it to an employer.

Links

• Ineligible checks

Notes about this case study

This case study relates to Unlock’s casework.

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

Kelly contacted our helpline after she’d had her insurance policy cancelled due to the non-disclosure of her partner’s criminal record.

Kelly explained that she’d used a comparison website to get insurance quotes for a new van that she’d recently purchased. After disclosing her partner’s unspent conviction, she had been surprised to find that the prices quoted had been no way near as expensive as she’d imagined them to be. Although she’d never heard of the company offering the most competitive price, further research revealed that they were specialists in providing insurance to people with convictions. Kelly went ahead with the purchase and paid the first instalment.

A couple of days later she received a letter from the company stating that they were aware of her partner’s unspent conviction and were cancelling her policy due to this not having been disclosed to them. Kelly immediately contacted them to dispute this, stating that she had proof of disclosure, but the company were adamant that she had not disclosed and that when purchasing any future policy, she’d need to declare that she’d had a policy cancelled.

Frustrated that the insurance company would not help and concerned that she’d never be able to insure her van, Kelly spoke to one of our advisors.

It quickly became apparent that the insurer concerned was one of those on Unlock’s list of brokers and so it was important that we establish what had gone wrong in Kelly’s case.

Kelly provided us with copies of the screenshots she’d taken from the original comparison site which clearly set out the details of her partner’s conviction. We sent this to the insurer and asked them to look again at her case.

Several days later we were contacted by the insurer who confirmed that they had fully investigated the matter and found that despite Kelly disclosing the conviction to the comparison site, some coding on the comparison site had been set to ignore some of the data which was passed to insurers.

The insurer apologised for any problem that this had caused Kelly and were happy to amend their records to reflect that the policy hadn’t been cancelled due to non-disclosure. They also offered Kelly a small amount of compensation.

Kelly said:

“Without the help of Unlock I’d never have got the result I got. I’m going to steer clear of comparison sites in the future and go direct to an insurer. Something I thought would save me time has just caused me a lot of anxiety and frustration”.

Lessons

We’d always recommend individuals go directly to an insurer rather than a comparison website and always make sure you keep copies of what you’ve disclosed to the company. Comparison sites earn their money based on the number of quotes they can generate over their rivals and, as happened in Kelly’s case, can sometimes fail to pass on key bits of information which, in all likelihood, would limit the number of insurers that would be able to provide a quote.

Links

• List of insurance brokers

Notes about this case study

This case study relates to Unlock’s casework.

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

Andy contacted our helpline after his application for social housing was declined on the basis of his ‘previous criminal convictions‘.

Andy explained that he had three previous convictions but these were all spent under the Rehabilitation of Offenders Act at the time he’d made his housing application. As he’d applied for supported housing, the housing provider had asked his social worker for a report to support his application. Having known Andy for years, she believed it was necessary to disclose his convictions as they ‘formed part of his file‘.

Andy had been told that he had the right to appeal the decision.

In support of Andy’s appeal, we wrote to the housing provider to explain that as his convictions were spent under the ROA, legally they should be disregarded by the allocations team. We provided them with details of a case which had been held at the High Court in 2016 where Hammersmith and Fulham Borough Council were found to have acted unlawfully by basing its decision not to add an individual to its housing register on the basis that the claimant had a spent conviction. The High Court found that the Council’s decision amounted to a breach of Section 4(1) of the ROA.

At the appeal hearing, the panel reconsidered Andy’s application and revoked its original decision. Andy was told that he would be able to move into one of the units as soon as one became available.

Andy stated:

“I’m obviously delighted with the decision. However, it may be a couple of years before a unit becomes available whereas, if my case had been dealt with properly at the time, I would now be living in one of these units and benefiting from supported housing”. 

Lessons

Once information is disclosed to them, councils and housing providers may believe it necessary to take it into consideration when making a housing decision. However as recent High Court cases and the governments updated homelessness code of practice has made clear, spent convictions should be ignored.

Links

• Housing
• Homelessness code of practice

Notes about this case study

This case study relates to Unlock’s casework.

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

Danny contacted our helpline for some advice after his employer, a company selling disability aids, had requested an enhanced Disclosure and Barring Service (DBS) check for his role as a driver/technician, stating that he would be required to instruct and train ‘vulnerable’ adults in the use of some of the equipment he was delivering.

In the couple of weeks that he had been doing the job, Danny had only delivered pillows, walking sticks and wheelchairs and had never given instruction or training to any of his customers. He felt that his job would probably only require a basic (DBS) check and wanted to know how he could challenge his company. As his conviction was spent under the Rehabilitation of Offenders Act and wouldn’t appear on a basic (DBS) check Danny was keen that his employer carry out the correct level of check.

We advised him to agree to the enhanced check and then immediately raise it by email as an ineligibility query with the DBS.

Danny followed our advice and at the same time also informed the DBS that the company were carrying out checks on a further three employees who were all doing the same job as himself.

Several days later, Danny was contacted by the DBS who confirmed that they had put his application on hold whilst they investigated the eligibility of the check although they were unable to consider the eligibility for the other three employees. During the conversation the DBS stated that Danny’s employer had given his job title as an Outreach Support Worker which he queried. He was told that the DBS were unable to question job titles with employers or Registered Bodies.

Despite providing the DBS with copies of Danny’s job description, contract of employment and a breakdown of his deliveries, the DBS contacted him several weeks later to confirm that following investigation they believed that his role would be eligible for an enhanced DBS check.

Danny decided that the only option open to him would be to arrange to speak to his employer about his conviction and hand over the enhanced DBS certificate to them.

Danny contacted us several days later to let us know that he’d had a meeting with the company’s General Manager who immediately terminated his contract.

Lessons

This case demonstrates some of the failings we’ve identified in the processing of criminal record checks by the DBS. In this case, the DBS were unable to put on hold all the checks which were being undertaken by Danny’s company on other employees doing the same job. In addition, they would not investigate why his employers were quoting a different role on the DBS application form, something we believe is an integral part of the investigative process.

Links

• Practical information: Ineligible checks 

Notes about this case study

This case study relates to Unlock’s casework.

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