Q Do you support the register?
David Chernick, head of commercial development, Reed Screening
Yes. We are the first recruitment company in the UK to use it to help safeguard our employees, customers and other employers. I believe that honest candidates shouldn’t have to compete for jobs with individuals who unfairly and deliberately conceal recent, crime-related dismissals. I also believe that our customers have the right to know that our employees are honest.
Alison Balchin, employment rights officer, TUC
The TUC views its development with concern. While criminal activity in the workplace can never be condoned, the TUC is concerned that this register may lead to people being shut out from the job market by an employer who falsely accuses staff of misconduct or sacks them because they bear them a grudge. The Criminal Records Bureau (CRB) already provides effective and properly regulated protection for employers and the TUC believes this is the channel employers should use.”
Q Will it bring any benefits to business?
David Chernick In the past six years, the British Retail Consortium estimates staff theft and fraud cost retailers more than £2.9bn. When an employee steals from, defrauds, or intentionally damages property of their employer, colleagues or customers, everyone suffers the loss. Honest employees fall under suspicion, lost revenue damages job security and dishonest job applicants enjoy an unfair advantage.
The register will help its members reduce staff-perpetrated losses and damage to their businesses, employees, customers, and the communities they serve. It will deter dishonest candidates from applying and it will reinforce intolerance for theft, fraud, forgery and intentional damage to property in the workplace.
Alison Balchin Crime against business is not victimless and is costly to employers, employees and customers. However, the NSDR is not the most effective way of addressing the problem, as more effective and robust mechanisms such as the CRB already exist for this purpose. Far from being beneficial to business, it’s likely that the NSDR will undermine trust in the workplace and damage employee morale as employees may be uncertain what information, if any, is being passed on about them and may not feel able to effectively challenge it. It could also be used in a threatening or coercive way by less scrupulous employers.
Q How easy will it be to operate in practice?
David Chernick The register relies on its members to contribute to a secure list of names of individuals they dismiss after their investigations reveal sufficient evidence during disciplinary procedures. In practice, this will form part of existing, stringent disciplinary and grievance procedures. That’s one reason why Action Against Business Crime restricts membership to employers with robust, fair and lawful employment practices to eliminate any danger or suspicion of the influence of grudges, misuse of personal information and security lapses.
Alison Balchin Any information system is only as good as the information it contains and the TUC has reservations about the reliability of the NSDR and remains unconvinced that sufficient safeguards are built-in to protect those individuals whose details are being held. It is claimed that Action Against Business Crime restricts its membership, but how is the assessment of employers carried out to ensure they meet the membership criteria?
Q Are you concerned the register may blacklist people?
David Chernick No. The NSDR limits inclusion to a maximum of three years. Surely that’s preferable to a formal criminal record that the Rehabilitation of Offenders Act considers as spent after five years for most non-custodial sentences, and after 10 years for prison sentences of between six and 30 months? Employers can look up names on the list only if they qualify to join, and then only as their final stage in the recruitment process. No one can see the entire list. I’m far more concerned for honest job applicants competing for jobs with individuals who unfairly and deliberately conceal recent, crime-related dismissals.
Alison Balchin To fairly dismiss an employee for misconduct an employer does not have to prove beyond reasonable doubt that the employee actually committed the offence, and indeed can dismiss more than one employee for an offence where a number of employees could have committed the act and the employer remains unsure which one actually did it. In cases where an employee has been dismissed and no criminal prosecution brought, an entirely innocent employee could effectively be blacklisted through inclusion on the register based solely on the belief of the employer. In addition, an employee who is dismissed with less than one year’s service generally has no right to bring a claim of unfair dismissal and therefore cannot effectively demonstrate that the dismissal was unfair and attempt to clear their name.
Q What legal issues does HR need to be aware of?
David Chernick No name can be added to the list without that person knowing in advance and receiving ample opportunity to appeal and give their side of the story. NSDR membership requires exactly the same application of employment legislation and consistent disciplinary and grievance procedures as existing recruitment and dismissal practices. Several months of detailed consultation with the Information Commissioner should reassure HR that NSDR membership also complies with the Data Protection Act. HR professionals still worried about defamation claims simply need to follow the same disciplinary and grievance procedures as they would for any fair and lawful employer.
Alison Balchin There are potential data protection and civil liberties issues here: regarding the accuracy of the data held, consent for the information held and the period of time that the data can potentially be held for. It is likely that legal challenges will be brought.
HAVE YOUR SAY
Mike Emmott, employee relations adviser, CIPD
It’s still unclear how much protection employees will have against having their name put on the register without good reason. The issue of what evidence will be required is critical, as accusations of theft or damage should not be enough to justify inclusion. The CIPD encourages employers to consider ex-offenders for suitable jobs. Our fear is the register will make it hard for people to find alternative work even though they’ve not been convicted of any offence, and may have left their employment voluntarily. Problems can arise not only from malicious or false accusations, but also suspicion and misunderstanding.
Mike Schuck, chief executive, Action Against Business Crime
Criticism of the register stems from a failure to understand the Data Protection Act. To get on the register an individual must first have been taken through the full range of disciplinary procedures. So employers will still need to prove that a person has been dishonest before his or her name goes on the register. We expect companies to use the database to support their current practices, not replace them, and have made huge efforts to ensure it’s legal. We wouldn’t dream of doing it if it didn’t allow people to fully exercise their rights under the DPA.
Owen Warnock, partner, Eversheds
Such a database will be subject to the provisions of the Data Protection Act. Information regarding the commission or alleged commission of an offence falls into a category known as sensitive personal data and will usually be disclosable only with the express consent of the individual, and in certain tightly regulated circumstances.
The NSDR – and those contributing to it – will either need to obtain the ex-employee’s express consent to disclose his or her personal details or establish that the need for such consent is overridden by the need to protect the vital interests of a prospective employer a difficult argument to support.
Robin Chater, secretary-general, The Federation of European Employers
Just because a database is useful does not make it lawful. Employers taking part in the blacklisting system could face legal challenges for defamation and data misuse under the EU data protection directive, which was introduced to outlaw just such violations of personal dignity and integrity. They could also be caught up in a referral to the European Court of Human Rights, which could do their reputations a great deal of harm. It is not a course of action that employers should embark on when reputations are already under threat in fields such as CSR, corporate governance and the new corporate manslaughter provisions.
- The British Chambers of Commerce estimates that crime costs business £12.6bn annually. That equates to more than a sixth of the total cost of all crime in the UK.
- 59% of businesses experienced at least one incident of crime in the year to April 2008. This includes 24% who experienced damage to vehicles, 20% who experienced vandalism and graffiti and 19% who were burgled.
- These crimes affected a far greater proportion of businesses in industrial estates/areas (73%), shopping parades (70%) and out-of-town locations (70%).
- Overall, 81% of firms feel that crime against business is a problem in their area.
- 68% don’t believe the police are effectively dealing with the issue.
THE DUTCH DID IT
The UK is not the first EU country to operate a private database of dismissed employees Dutch retailers have been operating a scheme for some time. This has, however, been challenged by the Dutch state Data Protection Agency on a number of legal grounds. As a result, the blacklisting system has been modified to ensure:
- It only includes dismissals for serious cases of fraud or theft.
- All circumstances of a case are taken into consideration before a listing is made.
- The data subject is given the right to check the entry and appeal to an independent complaints committee or court.
These conditions effectively render the blacklist worthless because a listing will only be valid if an individual has been successful tried in a criminal prosecution.
Source: Federation of European Employers