Sunday, December 20, 2009

Someone's Missing the Point

And, to be honest, it may be me. But as the article is from the "Sunday Grauniad", it probably isn't.

The revelation has provoked outrage among human rights groups who warn that it could affect the job prospects of the innocent. They fear that whenever an employer carries out an "enhanced criminal records" check on a potential employee, the system would flag up the fact that the person had been arrested.

I have no idea whether permanently retaining records of arrests is new and we have no real insight in to the effect of spurious details appearing on Enhanced Disclosure reports (especially the super-sekret "don't tell the applicant" ones straight from the Nu-Labour "Kafka or Orwell - Let's do BOTH!" playbook.) And, we are unlikely ever too, given that the system has already been replaced by the "Independent Safeguarding Authority", which, itself, is probably on rather a short shelf life. But there is an important step missing ... Let's look!

(Liberty) "Government has fed a culture where arrest might as well be conviction, and suspicion equals guilt. In this climate, a permanent record of suspicion can seriously damage the life chances of any young person who has ever had their collar felt by the police."


A spokesman for the Criminal Records Bureau said: "An arrest with no further action may show up as part of an enhanced check, but the decision is made by the chief officer in each police force if they believe that the information ought to be included and that it is relevant to the application.

Hmm. Now, I am a small employer and as such have certain responsibilities when looking at applicants - and I have access to government vetting and also, in some cases, to Enhanced Disclosure rules. Now, except in cases where there is a specific ban on allowing employment (s3, s9 and Schedule 4 of the "Safeguarding Vulnerable Groups Act 2006" for example) - and that has nothing to do with records of arrest showing on an Enhanced Disclosure - you must have been placed on the relevant barred list (s2), it is up to the employer to consider the nature of the disclosure and its relevance to the employment activity.

In fact, as an Enhanced Disclosure will show up details of spent offences, it is an offence for the employer not to take the specific relevance of the offence into account when making a decision regarding employment. You would assume that if it is an offence to take in to account a conviction for an irrelevant crime, surely there must be (I know, I'm talking about the law here, not common sense) an equivalent offence - or at least civilly actionable tort - for taking in to account an arrest, suspicion or disclosed intelligence regarding a similarly irrelevant crime (assuming for the sake of argument that any crime had actually been committed - whether by the job applicant or anybody else.)

Or am I missing something?

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