Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Criminal recordsEx-offendersRecruitment & retentionEmployee references

High Court: criminal record checks are “arbitrary” and unlawful

by Jo Faragher 25 Jan 2016
by Jo Faragher 25 Jan 2016 Roles such as teaching assistant require a criminal record disclosure. Stock photo: Janine Wiedel/REX Shutterstock
Roles such as teaching assistant require a criminal record disclosure. Stock photo: Janine Wiedel/REX Shutterstock

The High Court has declared that the Government’s criminal record disclosure scheme is incompatible with the Human Rights Act.

Ruling on a case last week, judges called the scheme used in England and Wales, which forces individuals to divulge their criminal record when applying for certain jobs, “arbitrary” and unlawful.

Criminal record disclosures

Job applicants with convictions

Policy on recruitment of ex-offenders

Access to criminal records

The case involved two people who claimed their careers had been ruined by having to disclose minor criminal convictions to their employers.

One woman, referred to as “P”, was charged with shoplifting a book in 1999 while suffering from an undiagnosed mental illness. She then failed to attend court and received a conditional discharge.

She has since tried to gain work as a teaching assistant, and has argued that having to disclose her criminal record breached her right to privacy under article 8 of the Human Rights Act.

Another claimant, “A”, was convicted of two minor thefts in 1981 and 1982 when he was 17 and 18.

Although he has worked as an accountant, company finance director and a project manager, he often needs to supply a criminal record certificate through the Disclosure and Barring Service (DBS).

When the rules are capable of producing such questionable results, on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be “in accordance with the law”. – Lord Justice McCombe

In 2013, the Government introduced a filtering process, which meant that single convictions for non-violent, non-sexual offences with no sentence did not have to be disclosed after 11 years (or five-and-a-half years if the person was under 18 at the time of the offence).

However, those with more than one conviction, regardless of how minor the offences, still have to provide full disclosure.

Lord Justice McCombe said it was unnecessary that minor offences should have to be disclosed indefinitely simply because there is more than one transgression.

He has asked the Government to make submissions to address these faults in the system before the court makes its final order.

Until then, the disclosure scheme will continue to operate in its current form. The Home Office said it would consider appealing the decision.

Unlock, a charity that supports people with criminal records, welcomed the latest High Court ruling.

Christopher Stacey, the charity’s co-director, said: “Since the filtering scheme was introduced in 2013, it has helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record.

“However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate.

“These shortcomings have today been recognised by the High Court and we are excited about the improvements which will follow. They will not only benefit those with convictions to move on positively with their lives but it will also contribute towards building a fairer and more inclusive society.”

Mike Pemberton, head of public law and civil liberties at legal firm Stephensons, acted for claimant “A”.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

He said: “The judgment of the High Court recognises that it cannot be necessary or justifiable for an individual to have minor offences disclosed indefinitely from many years ago; merely because there is more than one minor offence.

“The court heard that a more serious offence of the same type would be filtered and accepted that there could not be any rationale for the disclosure of the minor offences. I welcome the fact that the court has effectively applied what is common sense to the issue of criminal records”.

Jo Faragher

Jo Faragher has been an employment and business journalist for 20 years. She regularly contributes to Personnel Today and writes features for a number of national business and membership magazines. Jo is also the author of 'Good Work, Great Technology', published in 2022 by Clink Street Publishing, charting the relationship between effective workplace technology and productive and happy employees. She won the Willis Towers Watson HR journalist of the year award in 2015 and has been highly commended twice.

previous post
Occupational health profile: Jane Fairburn, managing director of People Asset Management
next post
Managing poor performance at work: five common scenarios for HR

You may also like

How neuroscience can unlock employee recognition

22 May 2025

Workers ‘wait and see’ as companies struggle to...

16 May 2025

So what does the election of a new...

9 May 2025

Rumours during recruitment: how should HR respond?

9 May 2025

Teacher apprenticeship route to be tied to school...

9 May 2025

British Steel to resume recruitment

8 May 2025

M&S pauses hiring as it deals with cyber...

2 May 2025

Top 10 HR questions April 2025: increases to...

2 May 2025

Leading with honest feedback: A responsibility in recruitment

24 Apr 2025

Succession planning now ‘more of a priority than...

24 Apr 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+