Pre-employment Background Checks, are they an indelible legal stain causing a barrier to employment?

Employment is recognised as an important aspect in a person’s life. The Rehabilitation of Offenders Act (ROA) 1974 supports this by providing a mechanism for past cautions or convictions to be confined to history as being spent. This thesis considers the evolution of this legislation, its implementation and interaction with employment. This is contrasted against the disclosure legislation, spawned from the Police Act 1997, which is designed to protect vulnerable groups. The nature of the competing aims of these two interlinked statutes undermines employment opportunities for both ex-offenders benefitting from the ROA 1974 and those without any proven criminal history or otherwise.

A criminal record or other recorded non-criminal or unproven behaviour is of a deeply personal nature. For many years the domestic courts held that pre-employment background checks failed to fall within the confines of Article 8 ECHR. This position morphed in the early 2000’s, with disclosure being recognised as a privacy matter. This brought into question the domestic legislative frameworks, where incompatibility with Article 8 remains. This interaction with Article 8, in terms of legality and necessity, form much of the research as does questioning the fairness of the disclosure legislation. The thesis further highlights the many inconsistencies between the ROA 1974 and the disclosure legislation.

Progress to rebalance rehabilitation, privacy, and disclosure, to support employment has moved at a glacial pace, often being stalled by political will. This thesis provides recommendations to support all those involved in the rehabilitation, disclosure, and employment process. The proposals would simplify a complex system and include, spent meaning spent, limiting the powers of the police when considering enhanced disclosure, and increasing the use of professional bodies whilst removing outsourced decision making by employers.

The thesis concludes that without fundamental change, disclosure will continue to dominate and the barrier to employment will remain.