New police powers on disclosing criminal investigations prior to conviction

29 September 2015

Employers will need to balance the rights of employees under suspicion against safeguarding responsibilities

The Home Office has issued new guidance on police disclosing details of convictions, criminal investigations and proceedings. The ‘Common law police disclosure’ guidance replaces the previous ‘notifiable occupations scheme’ which allowed the police to pass information about someone to an employer, or regulatory body, where there was a perceived public protection risk.

The new regime focuses on providing information earlier: when someone is arrested or charged, rather than when convicted. The regime will have the greatest impact where individuals are accused of a sexual offence or offences relating to indecent images of children, and complements the disclosure and barring service which provides information on criminal convictions. The police will now be allowed to use their professional judgement to make disclosures about individuals prior to conviction where they believe there is a risk because of an individual’s employment or voluntary role and the disclosure is necessary for public protection. They will be able to make a disclosure where they consider there is a ‘pressing social need’.

Employers such as educational establishments, charities and healthcare providers, that have staff who are responsible for children or vulnerable adults, are most likely to be affected by the new rules.

The Home Office says the new scheme provides robust safeguarding arrangements while ensuring only relevant information is passed on to employers and suggests it strikes the right balance between the interests of the individual and the importance of public protection. It remains to be seen whether this equilibrium can be achieved fairly. Both the police and employers will have their part to play in ensuring the new rules achieve this aim.

When the police are making a decision on whether to release information to an employer about an employee perceived to be dangerous, they will to need to balance the rights of the employee against those they come into contact with at work. The previous regime had a list of specific occupations which might merit disclosure. Removing this list in the new scheme means the police making more of a judgment call than in the past.

As information can be passed on prior to conviction, employers will need to decide promptly how to respond to protect the interests of other employees or service users, and also how to manage the employment of the person facing a possible prosecution. It is possible the employee might be acquitted at trial, or the matter dropped after further police investigation. Employers will need to balance that possible outcome with their duty to protect those the suspected individual deals with in their role.

Employers can, if they wish, carry out their own investigation, although in the circumstances covered by these new rules, that investigation will not be in parallel with the police enquiries - it is more likely to be simply finding out about the allegations and the steps the police are taking. It may be helpful to discuss the issue with the employee and/or the police, if the police are prepared to cooperate beyond mere disclosure and if the individual is prepared to discuss it. However, individuals in these circumstances may be advised by their lawyers not to speak to their employer about it.

An employer may choose to suspend the employee. But if the employee is facing prosecution, the employer may be concerned about having someone suspended on full pay for many months and may want to act with more speed. If the employee is placed on remand, there is scope for saying the employment has ended because the contract has been frustrated (brought to an end because one or other party is unable to fulfil their part of it). Alternatively, the employer may wish to use its disciplinary proceedings to form its own view on the employee’s guilt, and its effect on employment, prior to any criminal conviction. Dismissals in such circumstances can be fair, depending on the circumstances, even though that may seem harsh for the employee.

This article first appeared in People Management 28 September 2015.

If you are an employer or an employee requiring advice in relation to employment law matter, please contact a member of our employment team.

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