A group of women have taken their case about whether their past soliciting convictions should be disclosed to potential employers to the High Court.

They argue that this duty to reveal past convictions is unlawful because it is discriminatory on the basis of gender and violates their right to a private life.

The claimants in this case all argue that they were the victims of exploitation and trafficking at a young age and turned to prostitution simply to survive. They all have various convictions for soliciting or loitering under the Street Offences Act and although these convictions occurred many years ago, they still plague the claimants when they are trying to seek employment or wish to volunteer.

What is the position with background checks into applicant’s past convictions?  

An employer or an organisation engaging volunteers may request a Disclosure and Barring Service (DBS) check to find out someone’s criminal record when assessing their suitability for positions of trust.

There are different types of criminal records checks, including:

• Standard: This will look to see if the applicant has any spent or unspent convictions, cautions, reprimands or final warnings from the police.
• Enhanced: As well as the information provided in standard checks, enhanced checks also look to see if there is any further information held by the local police force that is pertinent to the role being applied for.
• Enhanced with list checks: This goes beyond enhanced check and looks at barred lists – those individuals who are not suitable for working with children or adults.

Under the Rehabilitation of Offenders Act 1974, individuals do not need to disclose information about previous spent criminal convictions. However, to undertake certain jobs, such as those which include working with children, individuals must provide details of all criminal convictions, whether spent or not.

Single convictions for non-violent, non-sexual offences that did not result in a custodial sentence or a suspended sentence, do not need to be disclosed after 11 years, or five and a half years if the person was under the age of 18 at the time of the offence. However, this would not apply if the individual had received more than one conviction.

If you would to discuss background checks further, read our article on pre-employment checks or seek advice from your Employment Law Adviser.