Belfast Telegraph

Forcing job applicants disclose convictions indiscriminate and disproportionatee court rules

By Alan Erwin

A mandatory requirement for job applicants to disclose multiple convictions to employers is indiscriminate and disproportionate, the Court of Appeal has ruled.

Senior judges in Belfast held that the State has "overstepped any acceptable margin of appreciation" in enforcement of the statutory scheme.

Lord Justice Gillen said: "In short, this is yet another instance of a blanket, automatic, inflexible approach to disclosure where there has been more than one offence."

The assessment came as they upheld a High Court verdict that the regime unlawfully breaches rights to privacy protected by European law.

The Department of Justice was appealing the outcome of a legal challenge brought by a woman fined for seatbelt-related offences dating back to incidents in 1996 and 1998.

Lorraine Gallagher was required to disclose details in a self-declaration form as part of her application for a position as a care assistant at a centre in Limavady in 2014.

Months later the Western Health and Social Care Trust withdrew its job offer because she had not provided full details.

Earlier this year the High Court ruled that the requirement to reveal details in an Enhanced Disclosure Certificate (EDC) when there has been more than one conviction, irrespective of age or subject matter, was unlawful and breached human rights.

Appealing that decision, counsel for the Department argued the scheme has sufficient safeguards to ensure proportionality of interference with rights to privacy.

But Lord Justice Gillen, sitting with Lord Justices Weatherup and Weir, said the provisions mean that "everything in the kitchen sink" has to be declared where there is more than one offence.

They held that no attempt has been made to:

  • Consider the species of individual offences or circumstances in which they were committed.
  • Ascertain the age of the perpetrator's age at the time.
  • Consider the type of sentence imposed or period since conviction.
  • Separate out spent convictions.

The judges also rejected submissions that more than one conviction can show propensity or a recklessness towards the criminal law.

Lord Justice Gillen concluded: "It cannot be appropriate that two minor offences, as opposed to only one minor conviction, from many years before, which the individual may well have put behind him/her in all other aspects of their lives, should suddenly appear on a criminal record relating to work with vulnerable adults or children without any assessment whatsoever.

"It is the lack of consideration that makes this scheme indiscriminate and therefore disproportionate".

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