News | Criminal records checks by employers under scrutiny

A challenge on criminal records checks used by employers is currently being heard by the Supreme Court.

An employer or an organisation engaging volunteers may request a Disclosure and Barring Service (DBS) check to find out someone’s criminal record. This is to assess their suitability for positions of trust. For employers in certain sectors, such as education, social work and healthcare, this is critical to prevent unsuitable people working with children, young people and vulnerable adults.

There are different types of criminal records checks including:

·         Standard – This will look to see if the applicant has any spent or unspent convictions, cautions, reprimands or final warnings from the police.

·         Enhanced -As well as the information provided in standard checks, enhanced checks also look to see if there is any further information held by the local police force that is pertinent to the role being applied for.

·         Enhanced with list checks -This goes beyond enhanced check and looks at barred lists – those individuals who are not suitable for working with children or adults.

As it stands, anyone applying for certain types of work with multiple convictions must disclose them to prospective employers for the rest of their lives. This is irrespective of whether they were minor offences and how long ago they occurred.

What is at the heart of this case?

One of the claimants in the case has committed two minor offences in 1999. This was while they were suffering from an undiagnosed mental health illness. Since then, she has not reoffended. But when applying to be a teaching assistant, she has had to reveal her conviction and her previous mental health condition. 

The Court of Appeal held that DBS checks for individuals with multiple convictions violated the right to private and family life under the European Convention of Human Rights. The government appealed the decision and it is now with the Supreme Court.

Director of Legal Services

James Tamm

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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