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Legal ruling on criminal record disclosures requires contractors/employers to take extra care
Some cleaning contracts require those doing the cleaning to have a Disclosure & Barring Service check (formerly known as the CRB check) and while this has had its problems in the past - mainly due to the length of time it took for the checks to be carried out and their cost, when one considers the rapid turnover of cleaning staff - the process has run fairly smoothly in recent years. All that could be about to change though, with the recent ruling by the Court of Appeal, that the law compelling employees to disclose all previous criminal convictions to employers infringes the Convention for Human Rights.
The judges concluded that in the two of the three cases they heard, the job applicants had been wrongly required to disclose their past offences, as the offences were not relevant to the posts for which the people were applying.
Lord Dyson, Master of the Rolls, ruled that such blanket provisions requiring the disclosure of all criminal offences amounted to a breach of Human Rights. Whilst recognising that the purpose of the checks is to protect children and vulnerable adults, he commented that the "statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim".
"It remains to be seen what impact this decision will have on the DBS which has only recently taken over the functions of the Criminal Records Bureau and the Independent Safeguarding Authority for England, Wales and Northern Ireland," explains Daniel Milnes of Forbes Solicitors. "Nonetheless, the Court has made a clear declaration that further change is required and that responsibility rests squarely on the shoulders of Parliament.
"The Home Secretary, Theresa May, now has 28 days within which to appeal the decision and take the case to the Supreme Court before the ruling of the Court of Appeal takes effect. The noises coming out of the Home Office are that the decision will be appealed - watch this space!
"Until then the judgment shows that good intention is not a sufficient defence where individual rights are breached. The Court acknowledged the objective of protecting the young and vulnerable but said that the rules as they stand went too far. This is a Human Rights case but the same principle holds true in data protection and other fields. It is always worth checking out the possible ramifications before doing what feels like the right thing."
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7th February 2013