Do employees have to disclose an offence?

  • David Harris
  • Wednesday, May 1st, 2019

In a recent case all the claimants were convicted, or received had cautions, for relatively minor offences and they were all ‘spent’. One of the offences was stealing a book worth 99 pence in 1999. However, their criminal records were disclosed when they applied for employment involving contact with children or vulnerable adults and the claimants argued this was a breach of their Human Rights.

The Supreme Court agreed with them and held that these statutory disclosure schemes breached the claimants’ human rights as they were not applied in a way that was proportionate.

The Court of Appeal had also criticised the schemes as not being consistent with the aim they were trying to achieve i.e. to protect those at risk, whilst as the same time protecting the rights of the individuals with these types of minor convictions or cautions.

The case in question was “R (on the application of P, G and W) v Secretary of State for the Home Department” and it will have a huge effect on the thousands of people who receive cautions every year. Many of whom already assume that a diversionary measure that they receive at the police station, which is seen as a way of avoiding going to court and being criminalised, will not affect their employment in later life. For some it is a nasty shock when they try to pursue their chosen career, to find that incidents which occurred in earlier life and long since put behind them, are disclosed to employers.

This judgment follows much criticism from many quarters. The justice select committee have widely condemned the current criminal records regime, which fails in many ways to distinguish offending as children from offending as adults. It found that the process undermines the very aims of the youth justice system, as it continues to stigmatise people for offences committed as children throughout their entire lives, without allowing them to move on.

It remains to be seen what the government make of the judgment. Whilst the judgment itself only finds two aspects of the filtering rules to be disproportionate under Article 8, as those are two central parts of the filtering rules, it is difficult to see how they can be changed without looking at the whole scheme. Further, the government will also need to respond to the Justice Select Committee report, which called for far wider changes to the system.

The judgment will also be considered for its analysis of Article 8, and the definition of “not in accordance with the law”. Sumption’s analysis of Lord Reed’s judgment in T is likely to be controversial, and certainly differs from the analysis of the Court of Appeal and from Kerr, who provides a dissenting judgment in this case.

The government will have to look again at how these issues are dealt with and adopt a more proportionate approach.

Author
David Harris, Managing Partner & Founder
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