+x+xLandmark day as the Supreme Court rules that the criminal records disclosure regime as it applies to multiple convictions and childhood warnings/reprimands is disproportionate.
Read our press release
here.
Well done, but does this relate to police cautions as well as convictions?
I don't see any reference to people with disabilities being high in the national statistics as victims of hate crime, harassment and antisocial behaviour getting caught up in the criminal justice system with cautions that limit employment opportunities still further.
There should be a way of appealing police cautions that were issued to people at extreme times of anxiety and distress, because all that is seen by an employer on an Enhanced DBS is the decontextualized offence.
From experience, the majority of employers are still not implementing ban the box, they are asking about prior, cautions, reprimands and warnings before the interview stage, with a get-out clause, when challenged, that they do not read the disclosure until after the interview. So, asking for disclosure before the interview does not make any sense, right?
Apparently tens of thousands of people are affected my old police cautions around offences such as ABH - which, can cover anything from minor scratches to serious assault, but the DBS contains one-size-fits-all descriptors of offences which should have probably gone to court.
This trial without day in court police caution, pounds-pence DBS system has stigmatised some of the most vulnerable people in our communities for the rest of their lives or until they turn 100 years old, and yet cautions seem to be obfuscated by convictions for the purpose of the Supreme Court.
It is unlikely that cautions handed out for offenses such as ABH to people with disabilities or to other vulnerable people such as women who have been victims of harassment or domestic abuse will ever be filtered from DBS records until there is common parlance with other marginalised people.
The Supreme Court ruling is a start, but I hope it goes further.
The reason cautions weren't included, beyond the fact that they weren't mentioned in the original cases, is that they are handled differently. If convictions were handled in the same way, the system would be a bit less unreasonable. For example, the Supreme Court had a problem with the multiple convictions rule, which is not applied to cautions.
Unfortunately, the problem with aggravated assault/harassment is that the relevant law is from 1998, and the Equality Act is from 2010. I'm sure the law could be updated to reflect that, but I'm always reluctant to suggest that the government changes the law, due to the
law of unintended consequences.
I'm disappointed that the specific problem of ABH wasn't dealt with, as the level of proof has changed over time, so that many cases that would have been ABH at one time are now common assault. This really is a case where Something Should Be Done.
Technically, a police caution can be appealed, but you have to show evidence of "
exceptional circumstances". However, it normally amounts to showing that the police didn't follow the correct procedures, so good luck with that.
Employers who ask for disclosure before interview could be
breaking data protection law, so as soon as someone is pulled up for it, practice will change quickly. Even then, if nobody asks until a job offer is made, there is still plenty of discrimination. More and more organisations and
people are
calling for Ban the Box, but a company can ban the box and still be prejudiced, so something has to change. I like
Outsourced's idea in principle, but who makes the decision on who is suitable, and who decides who makes the decision? Maybe scrapping basic DBS checks is the way forward, as safeguarding is covered by other procedures. Given that civil servants are being seconded to deal with the bureaucracy of Brexit, maybe they could re-assign all the people who process basic DBS checks, and do it sooner rather than later. Just saying.
