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Case Type: Our work with other organisations

Housing organisation amends misleading question on their employment application form

Our helpline was contacted recently by an individual who had some concerns about the questions being asked relating to criminal records on a homeless accommodation provider’s job application form.

The individual had been applying to be an administrative assistant and, having seen the job description, assumed that the role would be eligible for a basic Disclosure and Barring Service check. However, the question on the organisation’s application form stated:

“Because of the nature of the work for which you are applying, the post is exempt from the provisions of Section 4(2) of the Rehabilitation of Offenders Act 1974, by virtue of the Exceptions Order 1975 as amended by the Exceptions (Amendment) Order 1986 which means that convictions that are spent under the terms of the Rehabilitation of Offenders Act 1974 must be disclosed, and will be taken into account in deciding whether to make an appointment. Any information will be completely confidential and will be considered only in relation to this application.

 

In addition, you are required to submit a Disclosure and Barring Service check. Any standard or enhanced disclosure made by the DBS will remain strictly confidential.

 

Have you ever been convicted in a Court of Law and/or cautioned in respect of any offence?  YES/NO (delete as required)”

Having reviewed the job description we believed that the role would only be eligible for a basic DBS check. We felt that the wording of the question could potentially lead to applicants disclosing details of their spent convictions resulting in the organisation holding information they were not legally entitled to. In addition to this, it appeared that the organisation may be carrying out ineligible DBS checks.

We attempted to make contact with the homeless accommodation provider on several occasions but received no response. We therefore raised our concerns with the Information Commissioners Office (ICO) who agreed that the application form breached the Data Protection Act and advised the organisation to review the question around criminal record information to ensure it was compliant with the DPA.

The organisation have now amended the question on their application form to:

Please note any criminal convictions except those ‘spent’ under the Rehabilitation of Offenders Act 1974. If none, please state.”

Although we don’t think that asking for this information at application is appropriate, they have at least amended the question to be much more clearly focused on unspent convictions.

 

Lessons

It’s clear that many people using the services of a homeless accommodation provider will be vulnerable and some of the staff who have direct contact with service users may require a higher level of criminal record check. However, it is often the case that organisations such as this one believe that they need to carry out standard or enhanced DBS checks on all their staff and that every role in their organisation is exempt from the ROA.

As this case demonstrates irrespective of their client group, organisations need to ensure that each role they advertise is carefully considered so that the recruitment process is fully compliant with the law.

Links

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 March 2020.

Engaging with an employer can result in questions on an application form being amended

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

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

Employers need to keep track of changes in legislation to ensure guidance given to employees is correct

We were recently contacted by an individual who wished to highlight some out of date information which he’d seen on the website of a courier company in relation to the Rehabilitation of Offenders Act 1974.

In an FAQ on their careers website, the company had posed the following question:

“What’s is meant by an unspent conviction?”

The response was:

“You are not required to disclose spent convictions covered by the Rehabilitation of Offenders Act 1974 in the UK or under your equivalent national legislation. A conviction becomes ‘spent’ after a certain length of time, which varies depending upon the sentence and your age at the time of conviction. If you have ever been convicted of an offence for which a sentence of more than 2 years was imposed (regardless of the amount you have actually spent in prison) then this conviction can never become spent”.

The Rehabilitation of Offenders Act was amended in March 2014 and the 2 years stated related to previous legislation (even though technically it was 2.5 years – so it was even incorrect back then). Any applicants who were unaware of the change in the law in 2014 could potentially disclose information that they didn’t need to. If the courier company were to use this information to make a recruitment decision then they could be in breach of data protection legislation.

We contacted the courier company providing them with details of the changes to the ROA. They immediately responded, providing us with details of the updates they’d made to the wording of the FAQ.

“You are not required to disclose spent convictions covered by the Rehabilitation of Offenders Act 1974 in the UK or under the equivalent national legislation. A conviction becomes ‘spent’ after a certain length of time, which varies depending upon the sentence and your age at the time of conviction. If you have ever been convicted of an offence for which a sentence of more than 4 years was imposed (regardless of the amount you have actually spent in prison) then this conviction can never become spent.”

Lessons

This case demonstrates how, if employers don’t keep track of changes to legislation, mistakes can be made in the guidance they give to applicants. However, as in this case, immediately the issue was raised with the company, they reacted quickly to amend their guidance which now makes the rehabilitation periods very clear to applicants applying for work with them.

Links

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

Professional bodies should ensure any questions they ask about criminal records are clear and not misleading

Our helpline was recently contacted by an individual who wanted to highlight a question being asked about criminal records by a professional body on their application form. The individual believed that this question was potentially very misleading as it asked:

“Have you ever received a caution or conviction for a criminal record?”

We informed the individual that membership of a professional body was covered by the Rehabilitation of Offenders Act and that the organisation were only legally entitled to ask about unspent convictions. If they intended to do any formal criminal record checks, they would only be eligible to carry out a basic DBS check. We were able to confirm to the individual that if an applicant disclosed a spent conviction in error, then the organisation should disregard it. If they retained the information, then they would be holding it unlawfully and could be in breach of the Data Protection Act (DPA) 2018.

We contacted the professional body to raise our concerns over the question on their application form, suggesting some alternatives which would be fully compliant with the Rehabilitation of Offenders Act. The suggested wording would provide applicants with very clear guidance about what they needed to disclose.

Despite contacting them several times, the professional body didn’t engage with us and we therefore referred the case to the Information Commissioner’s Office (ICO).

Several months later, the professional body contacted us to confirm that they would be changing the question relating to criminal records on their application form to the following:

“Do you have any unspent convictions that would fall within the relevant criminal convictions defined within Regulation 13 of the (professional body) Disciplinary Regulations? If yes, please inform the Institute Secretary.”

We were happy that the question was now very clear, and applicants would be in a much better position to understand what they needed to disclose.

Lessons

This case highlights how professional bodies often believe that the wording they use on application forms around criminal records is correct. However, very often the question will be misleading and could potentially result in applicants over disclosing the details of their criminal record and lead to an organisation breaching the DPA if they were to take the information into consideration.

If you believe that an organisation is asking a misleading question, it’s always worth raising your concern with either the organisation themselves or an appropriate regulatory authority, in this case the ICO. In this instance the professional body amended the question about criminal records to make it clear as to what an applicant was required to disclose.

Links

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.

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.

Colleges must ensure that if they want to know about criminal records, then their questions are very clear

Our helpline was contacted recently by a probation officer who was working with an individual looking to apply for a college course. She believed that the wording on the application form was unclear as the question asked:

 

Please declare whether you have any relevant* convictions or current proceedings against you:  Yes/No

 

*Relevant proceedings or criminal convictions are those of violent or sexual nature or involving unlawfully supplying controlled drugs or substances. Failure to declare information may result in disciplinary action being taken. However, if applying for a course in Support/Teaching, Childcare or Health and Social Care, you will need to declare ALL criminal convictions so please indicate Yes to this question as all are relevant at this stage of the admissions process.

 

We contacted the college setting out the following:

  • The criminal record question was potentially misleading and gave very little guidance about what applicants needed to disclose for which courses. This could lead applicants to disclose convictions which they didn’t need to, specifically those which were spent under the Rehabilitation of Offenders Act.
  • There was a risk that the college could take something into account which they were not legally allowed to consider. Action could potentially be taken against them under data protection legislation.
  • For courses relating to teaching, childcare or health and social care, no mention had been made of the fact that ‘protected’ cautions and convictions did not need to be disclosed.

The college was happy to engage with us and amended their question to read:

 

To help us meet our responsibility to safeguard all members of the college community please declare whether you have any relevant* unspent convictions or current proceedings against you:  Yes/No

 

*Relevant proceedings or criminal records are those of a violent or sexual nature or involving unlawfully supplying controlled drugs or substances. Failure to declare may result in the college withdrawing you from the course.

 

If you are applying for a course in Support/Teaching, Childcare or Health and Social Care, do you have any convictions, cautions, reprimands or final warnings that are not ‘protected’ as defined by the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 (as amended in 2013)?  Yes/No

 

Lessons

This case demonstrates how colleges are often unclear about what questions they can ask about criminal records. However. as this case shows once they’ve been given advice around disclosure legislation, they’re happy to amend their application forms to comply with both the ROA and Data Protection Act.

Links

There’s information on universities, colleges and education on our self-help information site.

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.

Social housing providers can only request details of unspent convictions on housing application forms

We were contacted recently by an individual who wanted some advice about answering a criminal record question being asked by a housing provider on their housing application form.

The question on the application form stated:

 

Have you or any member of your household ever been convicted of a criminal offence?  Yes/No

 

The individual concerned didn’t feel that the housing provider had the right to ask about spent convictions but was worried about raising this with the provider themselves.

We contacted the organisation highlighting the fact that the question on their application form could potentially be misleading and may result in an applicant disclosing more information than it was legally necessary for them to give.

We provided them with details of a High Court case in which Hammersmith and Fulham Borough Council had been found to have acted unlawfully by basing its decision not to add an individual to its housing register on the fact that they had a spent conviction.

Despite several attempts at contacting them, the housing provider did not engage with us and we had no option but to raise our concerns with the Information Commissioners Office (ICO) as we felt that the housing provider could be breaching the Data Protection Act if they processed information they were not legally entitled to hold. The ICO agreed that the wording on the form was excessive and contacted the housing provider encouraging them to make changes.

A month later we were contacted by the housing provider who informed us that they’d amended the criminal record question on their housing application form to read:

 

Do you have any offences which are currently unspent under the Rehabilitation of Offenders Act 1974 (You do not need to disclose anything that is deemed “spent”)?

 

Lessons

This case demonstrates how housing providers often believe they can ask questions about both spent and unspent convictions. However, as this case shows this can result in applicants over disclosing the details of their criminal record and housing providers potentially breaching data protection legislation if they were to take this information into consideration.

Links

There’s information on housing on our self-help information site.

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.

Challenging a Community Rehabilitation Company regarding the failings in their recruitment process

We were contacted by an individual after she’d been dismissed from her job as a receptionist with a Community Rehabilitation Company (CRC). When she’d applied for the job, she was aware that she’d need a basic DBS check and, as her conviction was spent, she didn’t disclose it to the employer. However, after starting the job a member of the CRC staff recognised her and mentioned her conviction to the CRC manager. She was called into the manager’s office where she disclosed her conviction and was instantly dismissed.

We contacted the CRC to raise the following concerns:

  1. As the receptionist role was covered by the ROA and only required a basic DBS check, the individual had no legal obligation to disclose her conviction to the CRC. Following her disclosure, the employer should have disregarded the details of her spent conviction. It appeared however that the individual had been denied a job based solely on her spent conviction which meant that the CRC could be in “breach of statutory duty” which could result in legal action being taken against them.
  2. Whilst the CRC had a policy around the recruitment of ex-offenders, they appeared not to have followed it in this case.

We were contacted by the CRC who stated that the individual’s spent conviction had not been the only factor in their decision to dismiss her. They confirmed that they did employ people with a criminal record but acknowledged that in this case there had been failings in the recruitment process. They would review their policies to ensure that similar issues did not arise again in the future.

 

Lessons

This case shows how difficult it can be for individuals to keep their job if their employer becomes aware of their criminal record, even when they had no legal obligation to disclose it. Employers could be in “breach of a statutory duty” if they dismiss someone purely on the basis of their spent conviction. However, this can be difficult to prove and employers will often cite other factors for dismissal.

Although the CRC acknowledged that there had been failings in their recruitment process, they still wouldn’t reconsider their decision to reinstate the individual.

Links

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.

Insurance brokers must ensure that any guidance they use to assist their customers is clear and does not provide misleading advice or information

We were recently contacted by an insurance broker who wished to place an advert on our online magazine, theRecord.

In line with our standard procedures, we reviewed the insurer’s website to ensure that they were a reputable company and able to help people with convictions.

Although the organisation were offering a range of products suitable for people with convictions, we were concerned about the wording of one of the questions posed on their FAQ page. This stated:-

 

Question – What would happen if I did not disclose my criminal record?

 

Answer – A criminal record is classed as a material fact. Therefore, if this material fact is not disclosed then your insurer has a number of rights. If a claim occurs then they have the right to refuse to pay out on the claim.

 

We felt that this question and answer was somewhat misleading as it did not take account of the Rehabilitation of Offenders Act 1974 and implied that an insurer could refuse to pay out on a claim if an individual had not disclosed both spent and unspent convictions.

We highlighted our concerns to the broker, namely:

  1. As no reference was made to the Rehabilitation of Offenders Act, then potentially a customer could over-disclose their criminal record, providing details of convictions which legally, the broker would not be eligible to know about. We suggested that the broker reviewed their question and make reference to the disclosure of unspent convictions only. We also provided the broker with a link to our disclosure calculator which we felt may assist the broker’s customers in working out when their convictions would become spent and could provide written evidence if required.
  2. In the answer section which referred to a criminal conviction being classed as a material fact, we highlighted to the broker that as of April 2013, changes to insurance disclosure law had been implemented which meant that ‘material facts’ related only to commercial insurance policies. Therefore, when purchasing personal insurance policies, individuals only needed to disclose details of their convictions to an insurer if they were specifically asked to do so.

Soon after this, the broker contacted us to confirm that they had made some amendments to the wording of their FAQ page. The new wording was as follows:

 

Question – What would happen if I did not disclose my unspent conviction?

 

Answer – A criminal conviction is classed as a material fact as long as it is not deemed as spent under the Rehabilitation of Offenders Act.

 

Lessons

This case shows how important it is for organisations to keep up to date with changes in legislation both that relating to their own work sector (for example insurance law) and wider legislation (such as the Rehabilitation of Offenders Act).

By potentially taking into account information which they are not entitled to have, insurers run the risk of breaking data protection legislation.

Links

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.

 

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