Bernie contacted our helpline seeking advice around employment and insurance. He explained that in 2019 he had been convicted of assault and received a 12-month suspended sentence.

He went on to say that prior to his conviction, he had been a driving instructor and, although the Driver and Vehicle Standards Agency (DVSA) had not removed his registration, he couldn’t find anybody to insure him to give tuition because of his criminal record. We suggested that he have a look at our list of insurance brokers.

We contacted Bernie a month later to find out whether he’d been able to source a suitable policy. He told us that he’d rung the first five brokers on the list who’d been unable to help him; three of them told him that as driving instructor insurance was such a specialist product, he would find it impossible to get insurance whilst his conviction was unspent. Bernie told the advisor:

“My conviction will be spent in five years and I’ll be able to go back to instructing then. For now, I’ll just have to try something else.”

The helpline advisor referred him to one of the brokers on the list who she was aware took an interest in the more difficult insurance issues and had been able to find policies for individuals when other brokers were unable to.

Bernie emailed us the same day to say that the broker we’d referred him to had found him a policy.

A week later Bernie told us:

“I’m all set up to go. I’ve got a full diary of appointments and had my dual controls fitted today. I had a little cry because the last time I made the trip it was to have them removed which just broke my heart. Today was a different story – I’m able to teach and words can’t describe how happy I am. From thinking that I wouldn’t be able to do the job I love for five years to knowing I can, it’s just amazing. Thank you so much.” 

Notes about this case study

1. Bernie was supported by Unlock’s helpline.
2. We have practical guidance on insurance.
3. Names and details have been changed to protect the identity of those involved.

Zara contacted our helpline seeking advice following her dismissal from work due to the non-disclosure of information on her DBS certificate.

Zara explained that she’d been working at a children’s nursery and was still in her probationary period when she was dismissed. She confirmed that at every stage of the application process she had been open and honest about her criminal record and was in no doubt that the details would also be verified on her enhanced DBS certificate.

Prior to receiving her certificate, Zara had been asked by her manager to confirm the details of her convictions as the Area Manager needed the information urgently. Zara told our advisor that she was asked for the information in front of the children in her care and other members of staff which caused her to become really flustered and meant that she only managed to disclose details of the convictions that she could remember at the time. Although she thought she may have missed something, she wasn’t unduly worried knowing that she’d disclosed everything at interview and that it would appear on her enhanced DBS certificate.

Zara told our advisor that it was following this conversation that she was dismissed on the basis that she had lied about her convictions. Zara wanted to know whether there was anything she could do to get her job back.

The advisor confirmed that Zara could write to the nursery and ask them to reconsider their decision. The advisor suggested that the letter should cover some of the following points:

• That Zara had been open and honest throughout the application process but, asking her to provide details of her criminal record whilst she was in charge of a group of children and, in front of other staff members was not appropriate and meant that she did not have accurate details to hand.
• Given that she had already disclosed her convictions at application stage and a DBS enhanced check had been applied for, why was there such urgency in asking her to provide the details of her criminal record?
• Although she may have omitted some details of her criminal record, this was not intentional and, knowing that her enhanced check had been applied for, would have been counterintuitive.

The advisor also suggested that Zara request copies of all data relating to her employment and dismissal.

Once she’d drafted her letter of appeal Zara sent a copy of it to our advisor who provided her with some additional comments and feedback.

Several weeks later Zara contacted the helpline again to say:

“I had a meeting with the nursery yesterday and I was able to go through all the points I’d set out in my letter of appeal. I had a phone call later that afternoon telling me that I had my job back.”

Lessons

Where an employer intends to carry out a DBS check, it is hard to see the purpose of asking an applicant to self-disclose, particularly when, as in this case, it was essentially used as a test of honesty. As this case demonstrates, people can’t always remember the details in full.

In our work with employers, we would always recommend that organisations:

• Consider whether self-disclosure is both necessary and appropriate.
• Be clear that self-disclosure is an applicant’s chance to provide context around their convictions, not an opportunity to compare the DBS disclosure as a test of honesty or memory.

Notes about this case study

1. Zara was supported by Unlock’s helpline.
2. We have practical guidance on disclosing criminal records to employers.
3. Names and details have been changed to protect the identity of those involved.

Ian initially contacted our helpline for some advice in 2019 after the solicitors he had worked for, for 25 years suspended him when his conviction from 1988 came to light.

In order to ensure that they were fully compliant with the Solicitors Regulation Authority, Ian’s employers decided to carry out retrospective background checks on all employees and Ian felt that he had no option but to disclose his conviction to one of the managing partners. His employers took advice from both the SRA and an employment law specialist but neither were able to offer any definitive guidance as to whether Ian’s conviction prevented him from working in a finance role.

Although the SRA later confirmed that Ian’s role did not fall within the scope of the regulations and he didn’t need to have a criminal record check, his employers had already made the decision to terminate his employment.

When our advisor spoke to Ian he was shocked to find himself unemployed after 25 years and we were able to provide him with advice around ‘friendly’ employers and disclosing his conviction.

In early 2020, Ian got in touch with the helpline again. He explained that finding a new job was proving difficult and he’d decided to utilise his skill set and knowledge to set up his own business. Ian asked whether we were aware of any organisations that he could approach for a start-up grant or loan and if we knew of any web designers that might help him with a new website.

We gave Ian the details of two organisations that fund business start-up’s as well as information relating to a scheme run by the Department for Works and Pensions. We also introduced Ian to a digital design company set up by a gentleman following his release from prison in 2018.

Ian emailed us a couple of weeks ago to say:

“I’m now up and running my own company. That would be a cause for celebration in itself, but I also have clients. It’s been just over a year since I lost my job and the past 12 months have been tough, but with the support and help from people like you and others, I got through this and the future does not seem as daunting.”

Notes about this case study

1. Ian was supported by Unlock’s helpline
2. We have practical guidance on self-employment/running your own business
3. Names and details have been changed to protect the identity of those involved.

Ulrik contacted our helpline for some advice following an application he’d made to study medicine at university.

He explained to our helpline advisor that when he’d applied to the university he’d been asked to declare any spent or unspent cautions or convictions that would show on a criminal record check. Ulrik ticked the “Yes” box and disclosed the details of a caution for harassment which he’d received approximately six years previously.

On receipt of his application the university asked Ulrik to attend a fitness to practice panel meeting to discuss the details of his caution in further detail. Following the meeting his application was refused on the basis of his criminal record with the university stating that:

“He posed a risk and there was little evidence that he would not be a risk in the future.”

Soon after receiving the university’s decision Ulrik became aware that his caution for harassment was eligible for filtering and would not appear on his enhanced DBS check.

Wondering whether he had any grounds for an appeal, Ulrik contacted a barrister who told him that for medical courses, universities were able to take filtered cautions and convictions into account.

After listening to his concerns, our advisor confirmed that Ulrik’s caution would be filtered from standard and enhanced checks. Even though he had disclosed it, this had been done in error and should have been disregarded by the university. The advisor suggested that it may be worth him appealing the university’s decision as they could potentially be in breach of GDPR and data protection legislation.

Ulrik put his appeal in writing to the university drawing attention to the legislation surrounding filtering, namely The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013. He also provided links to the General Medical Council’s website which provided guidance around filtered cautions and convictions and stated:

“If it is protected (filtered) it does not need to be declared when you apply for registration. If you do disclose a protected offence, we can’t take it into account when we assess your application for registration”.

Several weeks later Ulrik contacted Unlock again to say:

“The university have upheld my appeal. I can’t tell you how happy I am with the outcome. Thank you so much for all your help.”

Lessons

This case demonstrates how colleges and universities are not always aware of the filtering rules and can mistakenly take into account convictions that they’re not legally entitled to consider. The worst offenders seem to be universities offering courses in medicine who, for some reason, believe that filtering is not applicable to them. 

Notes about this case study

1. Ulrik was supported by Unlock’s helpline.
2. We have practical guidance on the filtering of spent cautions/convictions.
3. Names and details have been changed to protect the identity of those involved.

After working for a bank for several years, Felix had applied for a new role as a mortgage broker. The bank had carried out a basic DBS check when Felix was initially employed but, as his convictions were spent, nothing was disclosed on his certificate. However, he had recently discovered that his new role would be FCA regulated and would require a standard DBS check. Felix contacted our helpline for some advice as he was unsure whether his convictions would be disclosed and if they were, whether he would be able to work as a mortgage broker.

We were able to confirm that as Felix had two convictions, neither would be eligible for filtering from his standard DBS check. We advised Felix that the FCA consider each applicant on their fitness and propriety and that the most important considerations are:

• honesty, integrity and reputation
• competence and capability, and
• financial soundness.

We mentioned to Felix that although he would be working as a mortgage advisor, it wasn’t essential that he be FCA approved, it was enough that one individual in the company have approval.

Felix emailed the helpline a couple of days later with a copy of a disclosure statement that he’d put together, asking for our comments. He explained that the bank would be carrying out the standard DBS check, which was the level of check they requested for all their mortgage brokers.

Having read through the statement, we suggested that although it was important to provide details of his convictions, the statement shouldn’t be all about them. We advised Felix to demonstrate the successes he’d had since starting work at the bank and how his experience and financial astuteness would make him an ideal candidate for the role of a mortgage broker.

We contacted Felix several months later when he told us that although the process had taken some time, his application had been successful and he was now working as a mortgage broker.

Felix said:

“I cannot thank Unlock enough for the support they gave me throughout this process. As I was applying for a job with the same company that I was already working for, I wasn’t only worried about not getting the new job but also about losing my current one if my convictions came to light. The advisor at Unlock gave me lots of encouragement and reassurance and it was good to know that they were at the end of the phone whenever I had a query“

Lessons

Having to disclose a conviction to somebody that doesn’t know you is always difficult and Felix had the additional worry that he might lose his current job were his employers to find out about his spent conviction.

In this case. Felix had a great employment record with the bank and we encouraged him to highlight this in his disclosure statement, rather than dwell excessively on his previous convictions.

Links

• Practical information: Disclosing criminal records to employers
• Practical information: Financial services sector

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.

Published March 2020.

Caleb contacted our helpline as he was concerned that a recruitment agency were going to carry out an ineligible criminal record check.

Caleb explained that he had a spent conviction for criminal damage from 2016. He’d always been very embarrassed about it and found it difficult to talk about and, it was for this reason that he made a point of only applying for jobs which required a basic DBS check (where his spent conviction would no longer appear).

After signing on with a recruitment agency, he’d just been offered an administrative role working for the NHS. The job was located in an office block in the city centre, miles away from the nearest hospital and, having checked the NHS website, Caleb had been pleased to see that he would only need a basic DBS check. However, he’d been told that for the first three months he would be employed by the recruitment agency before being taken on permanently by the NHS. The agency told him that they would be doing a standard DBS check and he was now considering whether to disclose his spent conviction to the NHS or turn the job down.

We advised that from the information provided, it appeared that the role would only be eligible for a basic DBS check and we advised Caleb not to disclose his conviction to the agency or the NHS at this stage. We suggested that when he went to the agency to complete the paperwork for his DBS check, he take a print out of the information on the NHS site which referred to a basic check and ask why the agency were doing a standard check for this particular role. If the agency insisted that a standard check were needed, we explained how Caleb could agree to the check and then immediately raise an eligibility query with the DBS. If the DBS found that the check was ineligible it would be stopped and the agency informed that the only criminal record check they could do would be a basic.

Caleb contacted us a couple of weeks later and said:

“I did exactly as Unlock advised and flagged up my concerns to the agency, showing them the information that I’d printed off the NHS site. The agency went ahead and did a basic check and of course, this came back completely blank. I started my new job a couple of weeks later.”

Lessons

There’s a lot of confusion around criminal record checks and it’s often assumed that where somebody is employed by the NHS, then a standard or enhanced DBS check should always be carried out. However, as can be seen from this case, where an individual will not be working in a hospital setting and won’t have access to patients, then it’s only necessary for a basic check to be carried out.

Had the agency gone ahead with a standard DBS check then not only would they have acted unlawfully by carrying out an ineligible check, they would also have breached data protection legislation by collecting and processing excessive data.

Links

• Practical information: Criminal record checks for employment
• Practical information: Challenging an ineligible DBS check

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.

Published March 2020.

Wes contacted our helpline for some advice as he was concerned about how much access he should give a potential employer to his criminal record.

Wes explained that he’d applied for a job as a university lecturer following an approach by the Head of Faculty. He knew that as his role would bring him into contact with some students who were under the age of 18, he would need an enhanced DBS check, and he’d provided the university with a written disclosure statement to explain a conviction he’d received in 2015 and which he knew would appear on the certificate immediately he was offered the job. Wes had assumed that he would be asked to attend a meeting with the university to discuss these in further detail.

Wes told us that he was contacted by the university again and was asked to provide them with signed authorisation to allow them to have copies of his probation reports. Although he wanted to cooperate with the university as much as he could, he thought that this request was excessive and, as he’d had very few dealings with probation (he’d received a short community order) he didn’t think that they could add anything more to what he’d already disclosed.

We explained to Wes that legally the university could apply for an enhanced DBS check which they’d already done. If they wanted further information regarding the conviction, then good practice would normally be to invite Wes to a meeting and ask any questions they felt necessary to allow them to carry out a proper risk assessment. We advised him to refuse to give his consent but suggested that he give the university Unlock’s contact details as we would be happy to support them in this specific situation.

A member of the university’s HR department subsequently contacted us. We explained how the university could use the disclosure statement provided by Wes to carry out an initial assessment of his criminal record. If this assessment flagged up any particular concerns or the university felt it was necessary to have a more detailed disclosure, then this should be done in the first instance by way of a face-to-face meeting with the applicant.

Wes contacted us a couple of months later and told us:

“After I’d spoken to Unlock I emailed the HR department at the university explaining that as I’d had very little contact with my probation officer, I didn’t feel he could add anything to my disclosure. I offered to meet with a member of the HR department if that would help them to make a decision.

 

I knew that Unlock also spoke with HR and between us we managed to convince them that I was the best person for the job. They offered me the lecturers role and I started work at the university 3 weeks ago.

 

It was great to have the support of an organisation like Unlock. I didn’t want the university to think that I was being obstructive but I really didn’t think that contacting my probation officer would have added any value to my disclosure.“

Lessons

Information that’s disclosed on formal criminal record checks can be quite limited and trying to interpret this can often be difficult for an employer. Providing a disclosure statement which includes details of your offence and the circumstances surrounding it can give employers a better understanding of what happened.

Sometimes, a probation officer or other organisation that you’ve been receiving support from can provide further information or documentation to help reinforce what you’ve disclosed but, their involvement should be your choice. Generally, you’ll be the best person to explain what happened, why it happened and what you’ve done since.

Links

• Practical information: Disclosing criminal records to employers

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.

Published March 2020