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An Employer’s Right to Check Applicant’s Criminal Past Comes into Question.

Published 04 April 2016

Employers have been allowed to do criminal record checks on job applicants but the right to continue doing so is now under question. A High Court judge ruled the criminal records check scheme used in England and Wales was ‘arbitrary’ and unlawful.

This follows a case in which two people successfully claimed their job prospects were destroyed by having to reveal minor convictions.

Lord Justice McCombe has asked the government to make submissions to address faults in the system, in advance of the court making its final order.

The Home Office said it would consider whether to appeal against the decision.

For now, the scheme will continue to operate as at present.

The Rehabilitation of Offenders Act (ROA) allows most convictions and all cautions, reprimands and final warnings to be considered spent after a certain period of time depending on the sentence or disposal given, rather than by the type of offence.

The ROA gives people with spent convictions, cautions, reprimands and final warnings the legal right not to disclose them when applying for most jobs.

However, employers are required to do Disclosure and Barring Service (DBS) checks when recruiting staff for particular types of work, which includes working with children and vulnerable adults.

The DBS replaced the Criminal Records Bureau in 2012. Among the problems with the previous system were long waiting lists and the fact it would confirm the criminal record status of the applicant at the time the check was carried out.

Depending on the role, the DBS check can include information held on its children and adults’ barred lists, along with any information held by police and considered relevant to the post.

For certain licenses and specified positions employers registered with the DBS checking service can ask a person to reveal their full criminal history (other than protected cautions and convictions), including spent convictions.

After the checks have been completed the applicant receives a DBS certificate.

Employers should use these types of checks as part of a thorough hiring process in order to make safer recruitment and licensing decisions.

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