Pippa recently contacted our helpline as she needed some disclosure advice prior to completing a job application form.

Pippa explained that she was applying for a job as a teaching assistant in a local school but couldn’t remember the date or the details of her conviction. She was therefore worried about giving the school incorrect information.

At the moment, you can’t get a copy of your own standard or enhanced check, so if that’s the level that the jobs you’re looking for involve, instead you need to get a copy of your police record, known as a Subject Access Request (SAR). We suggested that Pippa apply to ACRO for this, which would provide her with a print-out of everything that formed part of her criminal record. We advised her to disclose nothing to the school until she was in receipt of this and to contact us again once she’d received her SAR. We would be in a better position to give disclosure advice once we had more details.

A month later, Pippa forwarded us a copy of her SAR which showed one conviction from 2005 which had three counts to it. We advised her that due to her having three counts under the one conviction, this would not be removed from her enhanced check (because it wouldn’t be eligible for a technical process known as ‘filtering’) and that she would have to disclose it to the school.

Pippa confirmed that she had been invited to attend an interview and the school had sent her a letter stating:

“As an organisation using the Disclosure and Barring Service (DBS) to assess applicant’s suitability for positions of trust, X school complies fully with the DBS Code of Practice and undertakes to treat all applicants for positions fairly. We undertake not to discriminate unfairly against any subject of a disclosure on the basis of conviction or other information revealed. 

At interview, or in a separate discussion, we ensure that an open and measured discussion takes place on the subject of any offences or other matter that might be relevant to the position. Failure to reveal information that is directly relevant to the position sought could lead to withdrawal of an offer of employment. We undertake to discuss any matter revealed in a disclosure with the person seeking the position before withdrawing a conditional offer of employment.”

We advised Pippa that the school appeared to have a policy and seemed to take their risk assessments seriously. We suggested that she prepared a self-disclosure statement which would (a) help her to disclose her conviction and (b) was something she could leave with the school as evidence of her disclosure.

Pippa contacted us a few weeks later to let us know that she’d been offered the job with the school and would be starting work at the beginning of the new term.

Pippa stated:

“As my conviction was quite old I’d forgotten a lot of the details. The advice to get my SAR was fantastic and allowed me to see exactly what an employer would see, this really helped with my disclosure. I had my risk assessment after the interview and the school told me that it wasn’t relevant to a teaching assistant job. I’m really not sure whether I’d have got the same result if it hadn’t been for the advice and support given to me by Unlock.”

Lessons

If you’re unsure about the date or details of your conviction(s), then it’s important that you get this information before you start applying for jobs. This can help you to make sure that you don’t under or over disclose your criminal record.

This case highlights the failings in the current filtering system as Pippa’s conviction would have been filtered were it not for her having more than one count.

On a positive note, it’s good to see employers like this one having very clear policies on their recruitment of people with convictions who carry out effective risk assessments which enable them to disregard anything which isn’t relevant to the job.

Links

• Practical information: Police records – Subject Access Requests
• Practical information: Filtering of cautions/convictions – A simple guide
• 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 September 2019

Terence received a conviction for a sexual offence when he was a teenager; he’s now in his 40’s. He contacted our helpline recently seeking advice around an issue he was having with social services.

Terence explained that he had recently started a relationship with a lady who had two children. However, they had been forced to split up due to the intervention of social services.

He believed that his partner’s estranged husband had become aware of his conviction through Sarah’s Law and had made a complaint to social services. Terence had been interviewed by them and was told that:

• The law stated that as a result of his conviction he was required to disclose it to anybody he started a relationship with.
• As he hadn’t disclosed to his new partner, they believed that potentially he could be looking to groom her children.
• If Terence didn’t end the relationship, the children may be removed from their mother.

Terence described the interview as an “interrogation”, taking him back to a period in his life which he’d tried to put behind him.

We provided Terence with the following information:

• As he was no longer on the Sex Offenders Register or subject to a SOPO/SHPO, there was no legal  requirement for him to disclose an historic conviction to a new partner.
• If social services had any concerns, they should have conducted a risk assessment evidencing the risk they believed the children to be at. We suggested that Terence apply for copies of all data held by social services by submitting a Subject Access Request.
• If he felt the risk assessment was not proportionate or he believed that social workers was abusing their power, then he could consider making a complaint.

Terence has since made a complaint to both social services and his MP. Social services have refuted his claim that they accused him of grooming. He and his partner have now made the decision to have another assessment in the hope that they will be given permission to live together with the children.

Lessons

We appreciate that there is a need for social services to carry out risk assessments where people with certain violent or sexual offences are entering into new relationships, especially if their new partner has children. However, these risk assessments are often not proportionate with regard to the evidence available and the historic nature of the offence and can result in people being told to end their new relationship.

We would always recommend that where an individual feels a social worker is not acting proportionately when dealing with a case, then they should appeal or challenge their decisions. Although parents may be threatened with having their children removed, this can’t happen without a proper risk assessment having been carried out.

Links

• Practical information: Relationships, children and dealing with social services

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 September 2019

Gerry contacted our helpline for some advice around employment and, in particular, the pressure he was being put under by the police and probation to disclose his conviction to his employer, even though his employers had never asked him to disclose.

Gerry explained that he’d been convicted of a sexual offence and although he’d never been to prison, he was on the Sex Offenders Register (SOR). He’d developed a good working relationship with his previous probation officer who had encouraged him to find a job, believing that it was likely to reduce Gerry’s risk of re-offending. After many job applications, Gerry found himself a job with an employer who didn’t ask applicants any questions about criminal records. He was enjoying the work and felt that he was in a ‘good place’. His probation officer told him:

“I’ve seen the difference in you when you’re working and when you’re not. Your depression and mental health seem to have improved and I believe you are less of a risk and less likely to re-offend now that you’re working.”

However, following staffing changes at probation he’d been allocated a new officer who, along with Gerry’s supervising police officer, thought that it was important for him to disclose his conviction to his employers.

Gerry told our helpline advisor that he was extremely concerned that if he did disclose his conviction to his employer, he would lose his job which could potentially lead to a return of his depression.

We advised him to arrange a meeting with his probation and police officers to make them aware of his fears around disclosing to his employer and also to highlight the views of his previous probation officer that he was less likely to re-offend if he were in employment.

A few days later Gerry contacted us again with an update. He’d been sent a text message from his probation officer to let him know that he would be visiting Gerry’s employer with his supervising police officer the following day to disclose the details of Gerry’s conviction. Gerry told us that he’d rather leave the job, than have his conviction disclosed and he was on his way to a meeting with his probation officer.

We suggested that Gerry ask the officers to:

• Set out in writing the reasons why they believed it was necessary to disclose his conviction to his employers.
• Provide details of the risk they believed he posed to work colleagues and members of the public.

Gerry contacted us later that day stating he’d made representation to the officers, but they were adamant that they were still going to disclose as “they were being ordered to by their senior management”. Gerry immediately contacted his employer and resigned from his job.

Three weeks later Gerry’s father contacted us to let us know that since resigning from his job, his son had committed a further offence and was currently on remand in prison.

Lessons

Whilst we appreciate the difficulties that the police and probation have in risk assessing individuals, there are occasions when the assessments they carry out don’t match the evidence that is available to them.

As Gerry’s case demonstrates, even though his previous probation officer felt that being in work would reduce his risk of re-offending and had been happy for him to accept the job without disclosing, a change of supervising officer meant that it became necessary for Gerry to disclose the conviction.

It’s interesting to see that the decision to disclose the conviction seems to have been made by ‘senior management’ and not the officers who dealt with Gerry on a day to day basis.

We’re aware that decisions can change when an individual gets allocated a new police or probation officer. However:

1. If you feel that an officer is acting disproportionately when asking you to disclose your conviction, ask that they put their reasons in writing.
2. If you disagree with the reasons, you should appeal the decision in writing, providing reasons and evidence of why the disclosure is not appropriate.
3. If the decision has been made by ‘senior management’, request an appointment with them, so they can explain their decision to you.
4. If, having made your representations, the police/probation still believe it’s appropriate to disclose, ask them to allow you to disclose to your employers yourself – you’ll be in a better position to explain the circumstances surrounding your conviction and answer any questions your employer may have.

Links

• Disclosing criminal records to employers
• Sex offence notification requirements
• Probation

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.

Katie contacted our helpline for some advice around employment after she’d been cautioned by the police for common assault after ‘slapping’ her 7-year old son Jake.

Katie explained that this incident had been completely out of character but Jake’s behaviour whilst out having a family meal had been terrible and had included him hitting and scratching her and screaming at the top of his voice.

Katie told us that as soon as she’d smacked him she was mortified and her son was also fairly shocked although quite calm. Katie was able to sit down with him and explain why his behaviour had been so unacceptable. They went on to watch a television programme together and, as far as Katie was concerned, the incident was ‘over and done with’.

However, at school the following day, Jake told his teacher what had happened and the school immediately contacted the police and social services.

The incident was investigated by both social services and the police and resulted in the caution for common assault.

Whilst the investigation had been ongoing, Katie had kept her employer updated of the situation and they’d allowed her to take some time off as unpaid leave. However, she’d been asked to attend a meeting with her employer’s to give a full explanation of the caution and how it had arisen. After listening to what she had to say, Katie was told that due to a breach of the employer’s Code of Conduct, she could potentially be dismissed and she was told that she was being suspended whilst her employers considered the information she’d given to them.

Following the meeting, Katie read her employers Code of Conduct and was relieved to see that she’d done everything she was required to do. She was confused therefore as to what reason her employer would have to dismiss her and felt she was being treated harshly and unfairly. At that point, Katie searched online for:

“Can I be dismissed for having a caution?” 

and came across Unlock’s details.

Katie spoke to one of our advisors who informed her that as her job was covered by the Rehabilitation of Offenders Act and that cautions are spent immediately, then her employers would be collecting and processing excessive information if they were to use her spent conviction as a reason for dismissing her. They could be in breach of the Data Protection Act 2018.

Katie contacted her employer with the information she’d received from Unlock. A few days later, her line manager rang her to tell her that they wouldn’t be taking any further action and that she should return to work the following Monday.

Katie stated:

“I can’t thank Unlock enough for giving me all the information I needed to help me defend myself and prevent me from being dismissed. The advisor I spoke to was not only informative but friendly and supportive – I don’t think I’d have kept my job if it wasn’t for Unlock.”

Lessons

Although Katie followed her company’s Code of Conduct and informed her employer of her caution, under the General Data Protection Regulations (GDPR), they had no lawful basis and condition for processing this criminal record data.

The employer didn’t intend carrying out a formal criminal record check to verify the information Katie had given to them and this could therefore be considered excessive data collection, a breach of principle (c) of GDPR.

By taking Katie’s spent caution into account, her employer would have been acting unlawfully under the Rehabilitation of Offenders Act and, as a result be in breach of principle (a) of the GDPR.

Links

• GDPR and data protection – Guidance for individuals

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.

Geraldine contacted our helpline following a job offer teaching adults. Geraldine explained that her employers had initially told her that they would be carrying out a basic Disclosure and Barring Service (DBS) check which she happily agreed to. However, several days later she’d been contacted by the HR department who informed her that on one day per week she’d be working in a building which had a creche on the premises, and she would therefore now be required to have an enhanced DBS check.

Geraldine informed the helpline advisor that as she had previous convictions which would be disclosed on an enhanced DBS check, she was worried that her employers may reconsider their decision to employ her. As the convictions were now spent and she’d believed that a basic DBS check was being carried out, she hadn’t disclosed them to her employer.

Geraldine had contacted the DBS who told her it was unlikely that her role would be eligible for an enhanced check. However, she didn’t feel that she’d been given enough information about challenging her employers over the correct level of check.

From the information provided, we advised Geraldine that as she would be teaching over 18’s, her role would only be eligible for a basic check. Just because the building she’d be working in had a creche made no difference to the level of check being carried out on her. Geraldine would not be working in or have access to the creche.

We recommended that Geraldine either speak to her employer about her concern, or alternatively agree to the enhanced check and then challenge it through the DBS ineligible check procedure. We explained to Geraldine how she would go about it.

Geraldine contacted us several weeks later to let us know that she’d decided to speak to her employer about the eligibility of the check. She’d set out her reasons for disputing the enhanced check and, having listened to the points she’d raised, they’d agreed to carry out a basic DBS check.

Geraldine had started her job and stated:

Before I spoke to Unlock I didn’t realise that it was possible to challenge an ineligible check. With the amount of information Unlock gave me, I felt confident enough to speak to my employer who agreed to carry out a basic check.

Lessons

This case demonstrates how employers often request ineligible criminal record checks convinced that they’re doing the right one.

With the right information and advice, Geraldine felt confident enough to approach her prospective employer and successfully challenge the eligibility of the enhanced DBS check. This direct approach to the employer doesn’t suit everyone, mainly because it can highlight to a prospective employer that an applicant has a criminal record. However, where an employer has made a genuine mistake, they’re likely to be more receptive to receiving correct information.

Links

• 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.

Darpak contacted our helpline very concerned about the impact of a motoring offence on his future employment and also his ability to become a trustee of a local charity group attended by his daughter.

Darpak explained that although he currently held a senior management position which had not been affected by his conviction, he was in the process of moving jobs and it was likely that any new role would involve some overseas travel.

Also, he had been invited to become a trustee of a local club attended by his daughter and was worried that his conviction would prevent him from doing so. Darpak explained that he would rather withdraw his application to the club rather than go through the embarrassment of being rejected.

We explained to Darpak that as his conviction would not be spent until 2019, he would need to disclose it to any future employer if he was asked. However, as this was his one and only conviction for a relatively minor offence and he had a lot of knowledge and experience, we would hope that his criminal record would not cause him too many problems. We advised that a far as travel is concerned, his ability to travel would depend on the country that he was travelling to and the length of time that he would be visiting for.

As far as becoming a trustee, we confirmed to Darpak that as his conviction did not relate to an offence relating to dishonesty or deception then he would not be disqualified from being a trustee. We gave Darpak some further advice around the disclosure of his conviction to the charity’s board of trustees.

Darpak contacted us some weeks later to confirm that although he’d not changed his job he’d been successful with his application as a trustee.

Darpak said:

“Although I knew that my conviction was for a relatively minor offence, I was so ashamed about it which then caused me a lot of stress and anxiety. The guy I spoke to at Unlock made me realise that I wasn’t the only one with a criminal record and that a motoring conviction wasn’t the end of the world. The information I’d read online about becoming a trustee made me think that I wouldn’t be able to do it and it was great to get some clear, concise advice”

Lessons

This case demonstrates that irrespective of the nature or seriousness of your offence any type of conviction can cause stress and anxiety. There is a lot of conflicting information online about who may be disqualified from being a trustee and it was good to be able to confirm to Darpak that he would be able to become involved in his daughter’s club.

Links

• Becoming a trustee of a charity
• Disclosing criminal record 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.