UNDERSTANDING RECORD CHECKS CRIMINAL There's a lot of confusion about including criminality checks in any preemployment policy and with the increase in demand for these checks it's important to understand when they are appropriate and how to administer them correctly. Our experts at the Screening Bureau have put together a useful reference guide: employer can seek about a person's criminal record history. While an employer is permitted to seek, and take account of, a lot of information in the first two types of situation, there are a number of restrictions in the third type of situation, by virtue of the Rehabilitation of Offenders Act 1974. ("ROA"). The ROA provides that, subject to certain exceptions, those convicted of a criminal offence who have not re-offended during a specified period from the date of conviction will be deemed Why check a person's criminal record history? Employers may want to check whether their prospective candidates or employees have a criminal record for a number of reasons: 2. The position is one which, by law, requires the employer to make such an inquiry (for example, work with children or vulnerable Sentence Detention centres (nowan (now abolished) offence calledwas community committed rehabilitation but no aged penalty 18was or over imposed) when convicted adults) Absolute Prison Fines, compensation, discharge (this probation action combination orders), punishment and called testing, community plans, and reparation (now curfews, rehabilitation punishment called service drug orders community treatment (now orders), sentence of 6more months than means tor 221/2 less that 1/2years Borstal (now abolished) 2. The nature of the work is such that making inquiries is desirable. An example of this is an individual working in a regulated position in the financial services sector. 3. There is nothing in the nature of the work which makes it mandatory or obviously desirable to carry out the checks but the employer wants to know about the person's criminal record history as part of assessing their suitability. Forexample, an employer may not wish to employ anyone who has committed offences of dishonesty violence. or rehabilitated and their convictions "spent". The period of time that must elapse before a conviction is deemed to be spent will depend upon the sentence imposed, although it should be noted that prison sentences of more than two and a half years never become spent. The current time periods are as follows: 7 36 Rehabilitation 10 5Never months years becomesperiod spent for people, The iaw places limits on what information an www.securitywatchdog.org.uk Watchdog S
the public domain, especially when it involves significant amounts or money, clients personal data or a stark breach in a company's operational integrity. There has been a recent case involving an AOL employee who was given a position in their technical department where he proceeded to sell millions of user identities to a group of spammers for substantial financial reward. Likewise if you invest millions of pounds in R&D you need to ensure that everyone who has access to that information is thoroughly checked and do not currently work for an industry rival. Education and Qualification Many positions within organisations, especially at mid to senior management, require certain levels of education or professional qualifications. One of the key areas where information is often misleading on CVs is in the qualifications. Candidates claiming that they hold qualifications when they don't are commonplace, as are degree forgeries, however by confirming the qualification direct with the issuing body these doubts can be quickly eliminated and risk reduced. Following the spate of rail disasters in the UK the reports highlighted several cases where track maintenance was being carried out by unqualified engineers without supervision, which has significant implications on liability for operators. Corporate Liability When incidents occur, investigations inevitably are carried out into the steps the company had taken to prevent such an incident happening. Where the findings show that processes are lacking, there can be significant implications, reputation not only for the company's but financial repercussions as well. Kirby sells vacuum cleaners by independent distributors that use door-to-door sales forces. The Kirby distributor as a sales representative, in San Antonio hired Carter but failed to check his background, which would have revealed a pattern of inappropriate employment. sexual behaviour in Soon after being hired, Carter sexually assaulted a customer at her home. She. sued Kirby for negligence and was awarded $160,000 compensatory damages and $800,000 punitive damages. Compliance A growing number of industries are coming under regulatory control, such as those that operate in a financial or trading environment. In these cases, their activities can fall under the requirements of the FSA, the governing body for the financial industry, where they require all employees operating in a regulated environment to undergo screening as part of their fit and proper test. In a similar vein, companies that are looking to win contracts with public sector bodies, will almost always be given a minimum standard of screening to comply with as part of the tender process. For further information on a range of international pre-employment screening consultancy services please contact Ewan Tweedie on ++44 (0}1428 728735. 4 Watchdog www.securitywatchdog.org.uk
(a) Spent convictions do not need to be disclosed Most spent convictions do not need to be disclosed to a current or prospective employer, even where there is a direct request for that information or a contractual requirement to disclose. Unless an exception applies, (see below, Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975), the effect of the ROA is that: A person questioned cannot be subjected to any liability or otherwise prejudiced for failing to acknowledge or disclose a spent conviction (section 4(2)), ROA). Examples of prejudice would include refusal to hire or offer promotion. assessing the applicant's suitability for the position or profession (article 3, Exceptions Order). Such enquiries are termed excepted questions. The applicant must be informed that spent convictions should be disclosed (article 3). Failure to answer an excepted question or give truthful information on the existence of spent convictions will be a valid reason to withhold employment or to dismiss. Where an applicant is being considered for a position covered by the Exceptions Order, the Criminal Records Bureau (CRB) Disclosure service is available. The Exceptions Order lists at least 70 specifically excepted occupations, offices and professions. Failureto disclose the detail or existence of spent convictions is not a lawful ground for dismissing or excluding any person from office, profession, occupation or employment(section 4(3)(b), ROA). (b) Exceptions: when spent convictions must be disclosed The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended ("Exceptions Order") overrides the employment rights which an ex-offender might otherwise have in respect of spent convictions under the ROA, by enabling employers to request information about spent convictions when recruiting for certain occupations or professions. Where someone is interviewed for a position covered by the Exceptions Order, the effect of the Exceptions Order is that: A person may be asked questions about spent (and unspent) convictions and will be under an obligation to answer, provided the questions are asked for the purpose of Ways to check a person's criminal record history (a) Voluntary disclosure An employer can ask a prospective employee about their criminal record history at the recru itment stage as part of the general pre employment voluntary disclosure this information, mind the following: screening process. Although is the simplest way to seek the employer needs to bear in The employee may not answer truthfully and, unless the employer is going to carry out subsequent criminal record checks, there will be no way of verifying this information. Unless the employee falls into an excepted occupation or profession, in respect of which it is legitimate to ask questions about spent convictions, the employee is not obliged to disclose any spent convictions. If the employee discloses information about spent convictions, without legally being obliged to do so, the employer will not be entitled to act upon this knowledge. 6 Watchdog wvvw. securitywatchdog.org. uk
(b) Disclosure Scotland Currently, basic disclosures are only available from Disclosure Scotland. It seems unlikely that basic disclosures will ever be introduced England and Wales by the CRB. Basic disclosures are obtained by the individual third parties with consent from the individual) in (or via and only contain details of convictions which are not spent. (c) Criminal Records Bureau The CRBis an executive agency of the Home Office which was established to criminal records information The CRBdisclosure service enables to improve access for employers. organisations to obtain details of spent and unspent criminal convictions. Only Registered Bodies such as The Security Watchdog Screening Bureau can apply for standard or enhanced disclosures. What weight should an employer attach to a person's criminal record history? The weight which should be attached to the person's criminal record history will depend upon the circumstances. In particular: There may be legislation which makes it compulsory for the employer to check a person's criminal record history. Forexample, teachers and social workers must undergo checks and it will be unlawful to employ them if they have committed sexual offences against children or if their name appears on a barred list administered by the Independent Safeguarding Authority (/SA). In such cases, an employer has no discretion about whether to obtain a disclosure and take the information into account. Assuming there is no legislation of the kind referred to above, but the position falls within the Exceptions Order, the employer may have regard to the person's criminal record history but is not obliged to do so. If there is any industry guidance or practice, the employer should have regard to this; otherwise it will have to exercise its own judgment about whether to seek information and what weight to attach to any information. If the role does not fall within either of the categories above, the employer must not take spent convictions into account but may take unspent convictions into account. In cases where the employer is exercising its independent judgment, Nacro (the crime prevention charity) recommends that it is good practice for employers to have regard to the following factors: Whether the conviction (or other matter revealed) is relevant to the position in question. The seriousness of the offence. The length of time since the offence occurred. Whether there is a pattern of offending or other relevant matters. Whether the applicant's circumstances have changed since the offending behaviour. The circumstances surrounding the offence WWvV.securitywatchdog. org. uk Watchdog 7
and the explanation offered by the individual involved. offence failed; such arguments could not "trump" the provisions of the ROA. Refusing to employ someone they have a criminal record This will depend on the nature of the position if If the person lied about their criminal record (and was not entitled to conceal it by virtue of the ROA), the employer may wish to terminate the relationship for breach of trust and and whether the offence is spent or unspent. If the offence is spent, the employer may not refuse to employ someone on this basis, unless the position applied for falls within the Exceptions Order. If the offence is spent but the position falls within the Exceptions Order,then the employer may refuse to employ such a person (and must refuse to employ such a person if there is legislation specific to that sector which prevents on offer of employme(1t being made). If the offence is not spent, and the position does not fall within the Exceptions Order, the employer may decide not to employ that individual. If a person's criminal record history is considered relevant to the role in question, the employer should make clear in the offer letter that employment criminal record checks. is subject to satisfactory Dismissing someone for their criminal record When employers recruit an individual and then learn about a crimina! record it will depend upon the circumstances whether or not the employer can safely dismiss them: If the conviction is spent (and the position does not fall within the Exceptions Order), dismissal on this ground will be unfair. In a reported case, the employer's argument that it was justified in dismissing a security officer when it learned about a spent dishonesty confidence. If it is shortly after the employment has commenced, the employer will simply have to give the correct notice. However, if the person has at least a year's service, more care is needed since they will have the right to claim unfair dismissal. It may be outside the range of reasonable responses for the employer to dismiss for breach of trust and confidence where the employee has shown themselves to be trustworthy and competent in the role, particularly over a long period. If someone is employed and later,acquires a criminal record, this may call into question their suitability for the role. However, the employer should not have a knee-jerk reaction to the commission of the offence; they should consider what bearing, if any, the offence has on the role, having regard to the factors outlined above. If the employer considers that the role is such that it would want to know, post-recruitment. if the employee had committed an offence, the employer should insert a continuing disclosure obligation in the contract of employment. While the existence of such a clause will not mean that the dismissal is necessarily fair, it may assist the employer in showing that it acted reasonably if the employee fails to disclose the existence of an offence which calls into question their suitability for the role. 8 Watchdog www.securitywatchdag.arg.uk