Criminal convictions ruling means employers can access more information on potential staff

Employers are now entitled to access more information regarding the previous convictions of potential employees, following a ruling by the Court of Appeal.

A successful legal challenge by five police authorities, against guidance stating they should delete older files regarding criminal convictions, will enable employers to now access details on the older convictions of job applicants held on police databases through the Criminal Records Bureau.

Previously, the Information Commissioner and the Information Tribunal had said the retention of police documents outlining old convictions should be destroyed as they breached the Data Protection Act. Police authorities can now keep the information for “as long as they feel necessary”.

Guy Lamb, an employment partner at DLA Piper, told Personnel Today this ruling would enable employers to access more detailed records for potential employees, but it would not affect the type of information available to employers.

He said: “It means that what is available to be checked will go back much further than it would have done before, but it won’t change the rules about what you can ask for, what’s a spent conviction and what isn’t.”

While he said it would “have a fairly limited impact for employers”, Lamb warned HR functions to act rationally with any information obtained about older convictions.

He said: “Just because someone has a conviction is not a good reason for not employing them, and that’s amplified if now you can start to get convictions that are considerably older. The same rules apply. Employers must think what relevance is the conviction to the role and how long ago it was.”

Kevin McKenna, senior associate at law firm Weightmans, added: “So the theft of a 99p packet of meat in 1984 for a person who was under 18 at the time and was fined £15 (one of the examples in this case) will be regarded as a spent conviction unless you are dealing with one of a number of specified jobs. If an exemption applies, then it is necessary that the information exists in a database to ensure the individual is accurately confirming their past criminal record.”

Comments are closed.