Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
In the Court’s ruling, it was decided that the disclosure of old convictions and cautions was incompatible with Article 8, the right to private and family life. The Court accepted that the purpose of disclosure did pursue the general legitimate aims of:
- protecting employers, children and vulnerable adults in their care; and
- enabling employers to assess whether an individual was suitable for a specific kind of work.
However, the conclusion of the Judgment is that the "statutory regime of obtaining CRB checks disclosing all previous convictions and cautions is disproportionate to that legitimate aim".
Whilst employers and others working with children and vulnerable adults have a right to know about an applicant’s criminal history, this must be balanced against disclosing historical and trivial information, which is now highly likely to breach a persons right to respect for private life. The Government intends to appeal the decision to the Supreme Court.
Our advice following the Court’s ruling is to continue obtaining DBS checks where prospective employees will be working in regulated activity with children or vulnerable adults. However, careful consideration will now need to be given to any issues that do arise as a result of obtaining a DBS check and the relevance of those issues or any cautions that arise will need to be considered in relation to the nature of the job and whether the person truly poses an unacceptable risk. In the case before the Court of Appeal a warning given to the Claimant when he was aged 11, relating to two stolen bicycles, was seen to be irrelevant when considering his application for a university course where he would be working with children.
Since 1 December 2012 the Criminal Records Bureau and Independent Safeguarding Authority merged to become the Disclosure and Barring Service (DBS). Therefore, pleasebe aware that, whilst the case referred to the CRB, it will now be referred to as the DBS, not the CRB.
For more information
For more information on the impact of the ruling or to discuss your organisations approach to DBS checks, please contact Kate Watkins on 0121 212 7494 or email@example.com.
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