The Court of Appeal recently ruled that the current system for checking criminal records (DBS checks) is ‘disproportionate’ and requires change.
The DBS check system is in place to provide employers with information about an individual’s suitability for a particular role. However, it has been ruled that this is insufficient in protecting a person’s right to a private life. This could have a significant impact for employers.
Criminal convictions
When someone has a criminal conviction, it can prevent them from carrying out certain roles, such as positions in education, for example. The Disclosure and Barring Service (DBS) carries out checks on criminal records and the detail provided about an individual’s previous convictions will depend on the type of disclosure requested. Some roles will need the DBS to detail both ‘spent’ and ‘unspent’ convictions.
Time limits on convictions are set according to the Rehabilitation of Offenders Act, whereby a conviction is considered ‘spent’ after a designated period of time. When a conviction is ‘spent’, this means that an individual will not normally be required to declare it to a prospective employer during the recruitment process.
Filtering systems are in place to ensure that a conviction no longer appears on a disclosure. Currently, they are filtered out when related to a non-violent/non-sexual offence after 11 years. After this point, they will no longer appear on a disclosure. However, this isn’t the case where there are multiple convictions. The ‘multiple conviction’ rule means that if there are two or more types of these convictions, then the information will not be filtered and therefore would appear on a disclosure.
Court of Appeal
A recent court case focused on a person who had convictions which, if it had been a single offence, would have been filtered out under the current system. However, due to having multiple offences, this meant that the disclosure fell within the multiple conviction rule and therefore appeared on her disclosure. The individual claimed this was a breach of her human right to have a private life, and that it had prevented her from getting a job as a teaching assistant.
The Court of Appeal were in agreement with the claimant and said that the current filtering system should be extended in order to take into account the number of offences as well as the type of offence.
DBS Checks and the impact on employers
The challenge was brought against the government, not the prospective employer. This means that it is the DBS system itself which is at fault. It will therefore be the government’s role to make changes to the system to get the balance of proportionality.
For now, employers should continue as normal when carrying out DBS checks on prospective employees. The government is likely to appeal the decision so this will be one to watch.
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