Case study – Arthur – Challenging the results of a basic criminal record check carried out by Disclosure Scotland instead of the Disclosure and Barring Service enabled me to keep my job

Following his successful appointment to a job working in a call centre, Arthur had been told by his new employer that he would need to apply for a basic criminal record check. His employer provided him with a link to an online application form which Arthur used to complete the check. On receiving his basic certificate Arthur was shocked to see that it still showed his conviction which he was certain was spent and shouldn’t have been disclosed.

A few days later Arthur plucked up the courage to speak with his manager and explained that despite his conviction being spent, it was still showing on his basic criminal record certificate. His manager told him that he would probably be dismissed due to his failure to disclose his conviction and the only advice he was given was to resign before he was sacked.

Arthur contacted our helpline to get some further advice and was asked by the helpline advisor to email a copy of his basic certificate. It immediately became apparent that instead of applying to the Disclosure and Barring Service who deal with basic checks for jobs in England and Wales, Arthur had unwittingly applied to Disclosure Scotland for his basic check. The advisor explained the impact of applying to the incorrect organisation for a basic criminal record check:

  • As of January 2018, Disclosure Scotland became responsible for carrying out basic checks for jobs based in Scotland; they are produced in accordance with Scottish law. At the same time, the Disclosure and Barring Service started doing basic checks for jobs in England and Wales; these are produced in accordance with English law.
  • Changes to the Rehabilitation of Offenders Act (ROA) in 2014 were only applicable in England and Wales which meant that rehabilitation periods in Scotland are generally longer than they are in England and Wales. For example a conviction which resulted in a fine in England would become spent after 1 year whereas in Scotland it would take five years.

Therefore although Arthur’s conviction was spent under English law it remained unspent under Scottish legislation which was why it had been included on the basic check carried out by Disclosure Scotland.

Although Arthur explained this to his employers, he was told that as the check had been carried out there was nothing more that could be done.

After seeking further advice from Unlock, Arthur spoke to his employers again explaining that:

  1. As the company and the job were based in England, the link provided by the company should have taken Arthur to the DBS site for online basic checks and not the one for Disclosure Scotland. Arthur’s basic check had therefore been carried out by the wrong organisation.
  2. As the basic certificate had disclosed convictions which were spent in England and Wales, these should have been disregarded by the employer. As the employers were continuing to use this information to disadvantage Arthur, they may be breaching the Data Protection Act by processing data excessively.

Several days later Arthur’s employer informed him that they had made further enquiries into the matter and agreed that they shouldn’t have taken the spent conviction into account and that Arthur could keep his job.

Arthur said:

“I couldn’t believe it when my certificate came back with my conviction on it but as soon as they saw it, Unlock knew exactly what had happened. The advice they gave me was invaluable and I wouldn’t have been able to challenge my employers without their help.”

 

Lessons

This case demonstrates how some employers in England and Wales have failed to recognise that as of January 2018 the DBS became responsible for all levels of criminal record check. By continuing to apply for basic checks through Disclosure Scotland, employers may be given information relating to spent convictions which they are not legally allowed to know about.

Where a spent conviction is disclosed to an employer in error (as in this case) the employer should disregard it as failure to do so may result in a breach of the Data Protection Act.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

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