The Rights and Wrongs of Disclosing Criminal Records – Supreme Court Ruling

There is a clear public interest in those who work with children or vulnerable adults being required to submit to criminal record checks – but how old, or minor, do their convictions have to be in order to be exempt from disclosure? The Supreme Court addressed that burning issue in a guideline case.

The case concerned four individuals who had all been convicted or received cautions or reprimands in respect of offences ranging from carrying children in a car without a seatbelt and theft of a sandwich to assault occasioning actual bodily harm and sexual assaults arising out of childhood experimentation. The offences were of some antiquity, all but one of them dating back to the 1980s or 1990s, and some of them had been committed when the offender was very young.

By virtue of legislation designed to promote the rehabilitation of offenders, all of the convictions and cautions were spent and there was no general obligation to disclose them to potential employers. However, as the four either worked with, or wished to work with, children or vulnerable adults, employers were required to obtain extended criminal record certificates, on which their past misdemeanours would be disclosed.

The four argued before lower courts, all but one of them successfully, that the statutory disclosure schemes were incompatible with their right to respect for their privacy, enshrined in Article 8 of the European Convention on Human Rights. That was because of the breadth of the categories of offence that were required to be disclosed. The schemes were also ruled disproportionate in failing to distinguish between convictions and cautions of varying degrees of relevance.

The Supreme Court conducted a comprehensive review of the relevant law after the Home Office, and the one complainant whose case failed in the lower courts, appealed. The Court noted that the schemes derived from the Rehabilitation of Offenders Act 1974 and the Police Act 1997, both of which created highly prescriptive and mandatory disclosure regimes. On that basis, the schemes passed the legality test and were in accordance with the law for the purposes of Article 8.

Turning to the issue of proportionality, the Court found that the schemes were not indiscriminate in nature but were carefully devised to achieve a balance between the competing public interests of rehabilitating offenders and safeguarding children and vulnerable adults. It was unfeasible to require a system of individual assessments and bright line rules were required to render the schemes practicable.

The approach of the schemes in requiring disclosure by reference to pre-defined categories of offending was justified. There was little evidence that employers could not be trusted to take an objective view and final decisions as to the relevance or otherwise of prospective employees’ convictions was properly left to them.

The Court, however, found that the schemes lacked proportionality in two respects: a rule concerning those with multiple convictions did not achieve the purpose of indicating a propensity to offend and applied irrespective of the nature, similarity, number or time intervals of offences. The schemes also failed to take sufficient account of the fact that warnings and reprimands issued to younger offenders are instructive and specifically designed to avoid damaging effects later in life through disclosure. The Court disposed of the appeals, and made limited declarations of incompatibility, in accordance with its ruling on the principles raised by the case.

Consultation on Boosting Protection for Pregnant Women and New Parents Returning to Work

The Government has published a consultation paper on its plans to enhance protection from redundancy for pregnant women and new parents returning to work. This follows a recommendation in the 2017 Taylor Review of Modern Working Practices and conclusions of the Women and Equalities Select Committee put forward in its report on pregnancy and maternity discrimination.

The consultation document explains the current law on redundancy protection for pregnant women and new mothers who are on maternity leave, as afforded under the Maternity and Paternity Leave etc. Regulations 1999, and puts forward a proposal that this should be extended so that it continues for up to six months after their return to work.

The consultation also seeks views on affording the same protection to parents returning from adoption leave or shared parental leave.

The consultation closes at 11.45pm on 5 April 2019.

Live-In Agency Carer Developed Employment Status Over Time

As relationships and working arrangements change, self-employment can morph into an employment relationship over time. Exactly that happened in the case of a live-in agency carer who worked 12 hours a day for the same client for over three years.

The agency for which the woman worked generally provided carers on a rota basis but an elderly man’s nephew (the client) wanted someone who would commit to a live-in placement, lasting at least six months, to provide care as and when required. In the event she stayed for years and, after her services were dispensed with, she lodged a complaint with an Employment Tribunal (ET).

Following a preliminary hearing, the ET found that the woman was an employee. The fact that she had paid her own Income Tax and National Insurance Contributions was not decisive. The client had described himself as her employer in the termination letter and other correspondence. She had lived in throughout the three-year period and, albeit informally, had received holiday pay. For most of the period she was paid by direct debit, only invoicing for overtime.

The agency laid on replacement carers when she was on holiday, but that did not mean that she had herself arranged such substitutions. The level of control that the client exerted over her had led to the development of a master/servant relationship. The mutuality of obligation required for an employment relationship was present and there was nothing to indicate that she had been running her own business.

In rejecting the client’s challenge to that ruling, the Employment Appeal Tribunal (EAT) noted that he had perhaps not intended his use of the word ‘employee’ in correspondence to have legal effect. However, he had indicated in trenchant terms his reluctance to accept independent action on the woman’s part.

The gradually decreasing level of oversight to which her work was subjected by the client was a mark of his increasing trust in her and did not affect her employment status. The ET’s conclusion was amply supported by findings of fact and the client’s appeal was based on over-analysis of the reasons it gave.

Is Your Confidential Information at Risk? Legal Advice Is the Best Protection!

Confidential information is the very lifeblood of many businesses and, if it is removed without authority by untrustworthy employees, it can be very hard to retrieve. As one case showed, however, judges have a range of emergency powers that can be used to ensure that the trail does not go cold.

A food wholesaling company launched proceedings after two of its senior employees resigned. They were alleged to have taken up employment with a competitor, one of them before the expiry of his notice period. It was also claimed that they had taken a great deal of the company’s confidential customer and pricing information with them and that, prior to their departure, they had acted fraudulently in diverting secret profits into their own pockets.

The company sought a pre-trial order requiring the former employees to deliver up any confidential information in their possession on their doorsteps. Concerned that the information could be deleted or destroyed if the men got wind of the proceedings, thus defeating the objective of the order, the company unusually did not give them prior notice of the application.

In ruling on the matter, the High Court noted that it had necessarily heard only one side of the case and that to grant such an order without notice was exceptional. However, there was clear evidence that the former employees had wrongfully taken copies of confidential information that the company described as its crown jewels.

There was also clear evidence that both men had acted fraudulently prior to their resignations and were either competing or preparing to compete with the company in breach of restrictive covenants in their employment contracts. There was good evidence that the potential damage to the company were the information to fall into the hands of a competitor would be very serious.

The men were likely to still have digital copies of the confidential information in their possession and the company had established a sufficient possibility of destruction to justify the grant of a doorstep delivery-up order. The order would not require the men to allow access to their homes or to submit to a search of their premises. They would also only be required to hand over electronic data, rather than hard copy documents, and the company and its lawyers would not be entitled to see the information retrieved without a further court order.

Ill-Health Retirement, Pension Rights and Disability – Supreme Court Ruling

If an employee has to move to part-time work due to his or her disabilities, how does that affect the calculation of his or her pension rights on taking ill-health retirement? The Supreme Court considered that issue in a guideline discrimination case.

The employee concerned worked for a university for 13 years. He suffered from Tourette’s syndrome and other conditions that satisfied the definition of disability under Section 6 of the Equality Act 2010. As a result of his disability, he had to work part time for the final three years of his employment. When he took ill-health retirement at the age of 38, he was working half his full-time hours and was paid commensurately. On retirement, he started to receive his pension.

There was no dispute as to the correct calculation of his basic pension. However, he was also entitled to a pension enhancement, the amount of which was calculated on the basis of his final, part-time, salary as at the date of his retirement. He argued that that approach amounted to unfavourable treatment because of something arising in consequence of his disabilities, namely his inability to work full time. Although that argument initially succeeded before an Employment Tribunal, it fell on fallow ground before the Employment Appeal Tribunal and the Court of Appeal.

In dismissing his appeal against the latter ruling, the Supreme Court noted that there was little to be gained by seeking to distinguish the word ‘unfavourable’, in Section 15 of the Act, and concepts such as ‘disadvantage’ or ‘detriment’ found elsewhere in its provisions. The fundamental objection to the employee’s case was that there was nothing intrinsically unfavourable or disadvantageous about the award of the ill-health pension.

The only basis on which the man was entitled to such a pension was by reason of his disability. Had he been able to work full time, the consequence would have been not an enhanced entitlement but no immediate right to a pension at all. In those circumstances, the award could in no sense be viewed as unfavourable.