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Judgment determines current system is “disproportionate” to applicants’ rights to privacy.  

The current criminal record check process, requiring employers to receive certain disclosures from the Disclosure and Barring Service (DBS) before recruiting an employee in a particular position, has faced a number of legal challenges. The main concern for many job seekers and campaigning groups is that they believe employment opportunities can be greatly hindered by the disclosure of a historic criminal conviction or charge. Although organisations are encouraged to make a recruitment decisions based on the suitability of the individual, taking into account all the circumstances and the evidence, there are those who are believed to use criminal record checks to easily filter through applicants.

The Supreme Court has now heard a challenge against the “multiple conviction rule” within the Rehabilitation of Offenders Act 1974 and the Police Act 1997. This rule means that a criminal record disclosure has to include details of all convictions where an individual has more than one conviction. The Supreme Court determined this rule was disproportionate due to a failure to consider matters such as the type and number of offences, any similarities between offences, and any time periods separating offences. Although it was recognised that an organisation needs sufficient information to review an applicant’s propensity to offend, this blanket rule was not a necessary or proportionate method of achieving this.

A challenge against the disclosure of warnings provided to minors was also upheld. Although these warnings were aimed at deterring minors without having a negative impact on their future unless they re-offended, the disclosure of these on criminal record certificates meant that individuals were facing a potential detriment due to warnings for minor offences, such as shoplifting, which were received under the age of 18. The Supreme Court again held that the indefinite disclosure of these warnings was disproportionate to the right to a private and family life under Article 8 of the European Convention on Human Rights.

Following this judgment, the government will be required to review the current criminal record disclosure rules in place. Whether a complete overhaul of the system is upcoming, or if specific rules are changed, the scheme will need amending to ensure there is no breach to job applicants’ human rights.

Organisations are advised to handle criminal record disclosures sensitively and appropriately. A blanket rule on requesting DBS checks should be avoided, with disclosures only sought where required or if these are appropriate for the job role in question. If a criminal conviction is revealed, the recruiting organisations is encouraged to discuss this with the job applicant and ask for any context, extenuating or change in circumstances. This will help the organisation make an informed decision which is based on all the evidence.

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