CRB check -possible dismissal

[remus]

Hi,

my daughter (21 years) has been working for a care agency, since march, she is now 5 months pregnant.

She filled in the crb, BUT thought her caution when she was 14 for hitting another girl of the same age, who had hit her FIRST (it was witnessed) was spent.

(sorry she was a foreign student, and at that time there was a lot of happenings with foreign students, and the police where clamping down)

 

It took a time for her crb to come back, and she was effectively laid off all of last month. The crb has the caution and it states Assault occasioning actual bodily harm. I have read the crb site and we now know that she should have put it down:roll:

 

She spoke to her manager who felt it should'nt have any effect now.

 

Today the agency have requested she attends a meeting re possible dismissal tomorrow afternoon.

 

Now she is nearly at the point where she can stop working, so the job itself is not the problem, I am more concerned that if she gets dismissed it will effect her future employment.

 

Has anyone any thoughts on how she should tackle this tomorrow?

[sillygirl1]

If the agency dismiss her now whilst she is pregnant it can be deemed that they are acting unlawfully and using the pregnancy as an excuse to carry out the CRB... how come it took so long for this to come to light anyway?

 

I think your daughter might find she can claim for unfair dismissal on grounds of pregnancy alone if they go down that route.

[remus]

Thanks for the reply sillygirl1,

If the agency dismiss her now whilst she is pregnant it can be deemed that they are acting unlawfully and using the pregnancy as an excuse to carry out the CRB... how come it took so long for this to come to light anyway?

She only started beginning of March and they had to do a crb check ( she only found out she was expecting after she started).

I believe it is an excuse, but they have a valid point in that she failed to disclose.

The manager got in contact with crb about 3 weeks ago, and they said it was with the police.

 

I think your daughter might find she can claim for unfair dismissal on grounds of pregnancy alone if they go down that route.

She hasn't signed a contract as they were waiting for the crb, so I don't see that they can dismiss her.

[Weird Al Yankovic]

If the agency dismiss her now whilst she is pregnant it can be deemed that they are acting unlawfully and using the pregnancy as an excuse to carry out the CRB... how come it took so long for this to come to light anyway?

 

I think your daughter might find she can claim for unfair dismissal on grounds of pregnancy alone if they go down that route.

 

She only started in March and CRB checks take time and often an employment is conditional on passing the CRB check.

 

It's a difficult one but from the circumstances explained I can't see the OP having much success if she is dismissed for not passing a CRB check regardless if she is now pregnant.

 

Good luck though and I'm sure somebody else will have a different view of this.

[callumsgran]

I'm with you Al, i've worked for agencies and residential/nursing homes and most wont even let you start before your crb has come back!

I'm afraid as far as the care industry is concerned your daughter will be hard placed to find a job with a conviction/caution for ABH as it stays on for life

Also it would have been a lot better for her had she admitted it at interview level and stated it on the CRB form

[Hobbie]

Care agencies can't usually claim exemption under the Rehabilitation of Offenders Act 1974, so...

 

She should only have to disclose convictions which are "Spent", which for a caution is 3 years for a juvenile, and 6 years for an adult from date of conviction, and to receive a caution you must first fully admit to the offence to a police sergeant or above in order to be eligible for a police caution.

 

So if it was when she was 14, and now 21, that is 7 years give or take a month or two... the CRB should not of included a spent conviction. UNLESS the care agency ARE in fact claiming an exemption under the Rehabilitation of Offenders Act 1974, and if so it will be the “Duty of care to vulnerable persons” and because ABH is an offence against a person this is most likely what they've done... an abuse of process In my opinion.

 

The bad news is, if on the application form (not the CRB) form asked to list all convictions and she missed it off, honest or otherwise. Then that could also be grounds for dismissal also.

 

But, If you are ill during pregnancy and you take sickness leave because of the illness is and it is pregnancy related you cannot be dismissed during this period of sickness.

[credit allergy]

I disagree, one of the exemptiotons to the rehabiltation act is working with elderly and children so spent convictions can still be considered. However a caution is not a criminal record so it depends on what the job application asked for. Also the crb code of practice says that employers must make fair decisions so due to her age at time of caution and the passing of time should help. So I would admit to the mistake saying that your daughter thought it did not count and then go down the it is not relevant route. As far as the job application form is concerned it will depend on what it asked for but according to the liberty website a police caution is exactly that and not a criminal record. good luck

[Hobbie]

I agree with credit allergy to some extent, in that a caution is not a criminal record, albeit it is recorded on the Police National Computer, and remains for life, only way to have it removed it by appeal at court, yet it will still remain and show instead "OVER TURNED ON APPEAL", This should then be disclosed only to POLICE and CPS.

 

Full information on police cautions is available at Cautions, penalty notices and other alternatives | Home Office. Although the home office say cautions is not an option for a juvenile, the police may still issue a caution if the juvenile fully admits the offence.

[patdavies]

Also it would have been a lot better for her had she admitted it at interview level and stated it on the CRB form

 

When you complete a CRB form, you don't state anything about convictions/cautions/etc. That is the whole point of the CRB check, they report on what is recorded against you.

 

As the CRB has come back with the caution on it, she can be dismissed with immediately effect if she did not declare the caution on the application form/at interview. She is not be dismissed for the caution, but basically for lying about it.

[remus]

Thank you all for your replies and I appreciate all the comments:)

 

The letter from the agency says "Failure to disclose criminal convictions under the terms of rehabilitation of offenders act 1974. Not adhering to policy statement on the recruitment of ex-offenders.

 

the link you gave me Hobbie has this "a conditional caution is not a criminal conviction. ". is the final warning the same?

Were would I find that it is on her records for life? If that is the case I will persue it further.

 

have just read through the link again, and the sentence I have quoted starts " just like a simple caution".

So I have answered my question on that one!

 

any thoughts

Edited May 8, 2008 by remus
add

[remus]

Also, as she has not signed a contract and they are not paying her, can they dismiss her? or just say we are not going to take you on?

[Sidewinder]

Thank you all for your replies and I appreciate all the comments:)

 

The letter from the agency says "Failure to disclose criminal convictions under the terms of rehabilitation of offenders act 1974. Not adhering to policy statement on the recruitment of ex-offenders.

 

the link you gave me Hobbie has this "a conditional caution is not a criminal conviction. ". is the final warning the same?

Were would I find that it is on her records for life? If that is the case I will persue it further.

 

have just read through the link again, and the sentence I have quoted starts " just like a simple caution".

So I have answered my question on that one!

 

any thoughts

 

As I understand it, a Caution never becomes 'spent' as a criminal conviction would under the Rehabilitation of Offenders Act, so under current legislation it remains on the record for life. There was a proposal to change this, but it does not seem to have happened.

 

Splitting hairs, but if your daughter was asked whether she has any criminal convictions then she can quite correctly answer "No". If she was asked about a criminal record, then that is different. They key to that would probably lie in the policy statement on the recruitment of ex-offenders to which they refer - any idea what that said specifically about 'convictions' or 'criminal records'? If she is accused of failing to declare convictions under the terms of ROA 1974. then she has no conviction, and also the Act makes no provision for cautions becoming spent, so this is something which could be interpreted either way and could give her some scope to make a case that she has not been dishonest.

 

Naturally she cannot escape the fact that she has had a caution - this can only have been issued following an admission of guilt. I think that (subject to exactly what she was asked to disclose) she can honestly say that yes she was silly, but that this happened as a juvenile and was little more than an argument between two teenage girls and she has always been led to believe that there would not be any need to disclose this as a 'conviction' as a caution is something completely different. As for a bearing on her suitability for employment, the decision will have to rest with the Agency, but the offence occurred 7 years ago and she has never been in trouble before or since.

 

It is more than likely that she will not be dismissed as such (if that is their decision) - more that they cannot accept her application. She should however still be paid for what she has done so far - if working since March she has obviously done a significant amount of work in that time and should be paid accordingly. If they allowed her to start before they received the CRB then that is their fault.

[JonCris]

This demonstrates the very best reason to refuse a caution.

 

It's there for life & no matter how trivial can have a devastating effect on peoples lives. Throughout their lifetime they will have to, on occasion, disclose it before being offered work or being allowed travel to certain countries one of which will be the States where they will certainly be banned from visiting.

 

When this government introduced this they had no idea, nor did they care it appears, as to how far reaching this would be in destroying the lives of some for the most trivial of incidents

[patdavies]

being allowed travel to certain countries one of which will be the States where they will certainly be banned from visiting.

 

Scaremongering nonsense. The existence of the caution implies that if the information has been made available to the US authorities, then the Visa Waiver Program may not be used, Anybody in this position will have to apply for a visa from the US Embassy - who will take a view on the age/type of conviction in their decision to issue.

 

I would bet good money that if this is the individual's only caution/conviction, there would be no hesitation by the US in issuing a visa

 

When this government introduced this they had no idea, nor did they care it appears, as to how far reaching this would be in destroying the lives of some for the most trivial of incidents

This Government, more than most, seem to make a habit of not understanding the law of unintended consequences.

[JonCris]

Absolute bull pat

 

I know personally of a young kid of 13 trying to enter the States on holiday with his family who was refused because he had a 1 year old caution for dropping litter which is was thought would not effect entry, even though they were able to demonstrate they where on holiday & their intention to return to the UK immigration refused........... why what was the kid going to do

 

So please don't tell me it's scaremongering it's not

 

Also I can only assume you don't travel much to the States or tried to obtain a visa from Grosvenor Square of late I understand the wait & the Q's & the interviews are horrendous

[patdavies]

Absolute bull pat

 

I know personally of a young kid of 13 trying to enter the States on holiday with his family who was refused because he had a 1 year old caution for dropping litter which is was thought would not effect entry, even though they were able to demonstrate they where on holiday & their intention to return to the UK immigration refused........... why what was the kid going to do

 

So please don't tell me it's scaremongering it's not

 

Presumably if they thought this, they attempted to enter via VWP - and were correctly refused. With the caution, he would need a visa.

Also I can only assume you don't travel much to the States

At least annually - we do most of our personal, non-food shopping there.

 

or tried to obtain a visa from Grosvenor Square of late I understand the wait & the Q's & the interviews are horrendous

It can be, but my understanding is that those under 14 do not have to attend for interview.

[Hobbie]

why what was the kid going to do

 

Litter the streets of the US?

[poppynurse]

You can do a Subject Access Request (SAR) under the Data protection Act to the police and they will provide a print out of any/all info they hold on you for £10, they have 40 days to comply. Go to the local force's website for details of how to apply. At least then you can see exactly what is written, it won't help this time but may for the future.

 

A caution/conviction does not bar you from working in health and social care, many employers are understanding and recognize that people change. I know several nurses who were shall we say a little wild in their youth but this has not stopped them training as nurses and getting on with their careers, details do have to be declared but mitigation can also be pesented and good employers will take this into account.

 

Employers application forms can be tricky, they often ask if you have any unspent convictions which can be correctly answered 'no' but there is no place to indicate spent convictions or cautions. I would suggest the best way is to mention details in interview (although with the stress of the situation it can slip your mind) or write to the HR department under seperate cover detailing what happened and any mitigating circumstances, that way you have declared.

[Hobbie]

police and they will provide a print out of any/all info they hold on you

 

"Any / All" is a broad spectrum, the police will only provide you with information YOU should already know about yourself. Under no circumstances are the police going to start releasing "Any / All" information, maining intelligence, but alot other things you'll never get to see.

 

The Subject Access Request from the police, will ONLY confirm what you should already know about your past expirence in dealings you may or may not have had with the police.

[JonCris]

If you don't like the idea of this company complain here ........ I have

 

I have asked if they have the Information Commissioners Office's approval

 

mail@Information Commissioners Office.gsi.gov.uk.

 

[remus]

Hi all, the agency she is working for is a small local private concern, I myself worked for them a few years ago, and know the owners ability to understand employment laws is zilch if its not going their way, reminds me a bit of dca's:rolleyes:.

She had a meeting with the manger, after her months trial, and he was sending a contract to her, but it never turned up.

 

The 'considering dismissing you' letter arrived the day before the proposed meeting, plenty of time to arrange a work colleague or trade union official, and find out what information the application form requires re convictions, not.

 

Sidewinder,

"It is more than likely that she will not be dismissed as such (if that is their decision) - more that they cannot accept her application. She should however still be paid for what she has done so far - if working since March she has obviously done a significant amount of work in that time and should be paid accordingly. If they allowed her to start before they received the CRB then that is their fault."

This is my thought, I just need my daughter to get her case put forward in such a way that they understand they do not need to 'dismiss' her, but let her go, (it's hard enough getting a job without negative reports)

 

JonCris,

"This demonstrates the very best reason to refuse a caution."

In hindsight yes, at the time the police and myself believed it would act as a short sharp shock, and he said he could see she wasn't a serial trouble maker.

Something needs to be done, as I believe the agency are using this law to 'get rid' of my daughter as she is pregnant.

 

She has been signed off for a week, as she developed a very painful abscess near her coccyx, so the meeting has been put off till next week.

Edited May 10, 2008 by remus

[Weird Al Yankovic]

But the employment had begun, that is the important factor.

 

They now seem intent on ending it. This is not an unsuccessful application as a relationship has already been created.

 

It would be viewed as a dismissal as two months of employment cannot just be ignored for legalities.

 

Many employments are conditional of a successful CRB check and failure to pass one is instant dismissal if one has started work already.

 

It is very different to 'an unsuccessful application' where one had not started work.

[remus]

Hi Weird Al, understand where you are coming from, I am just going to read up on the employers guide lines on crb to see how they could handle this.

[Weird Al Yankovic]

Hi Weird Al, understand where you are coming from, I am just going to read up on the employers guide lines on crb to see how they could handle this.

 

Yes, thank you.

 

The problem here is that the employment needs to end as the CRB check was unsatisfactory. This we know.

 

Now, I don't wish to alarm you as it is highly unlikely with the quite obvious innocence of your daughter, but some applicants will not declare what they should on a CRB check and this can leave them open to prosecution.

 

The employer have to cover themselves for legalities in these circumstances and have to follow the guidlines of legislation.

 

They have to show that they dismiss those who do not satisfy a CRB check or they run the risk of serious consequences if they do not.

 

These are not the circumstances where one may have claimed a bit more on their expense account and face an ultimatum of being dismissed or to resign.

 

Your daughter, seemingly, is being dismissed for not declaring something that has now shown up. That appears the problem.

 

The good thing is that this is not a barrier for her career-just this one position due to what has happened.

 

She has obviously acted in good faith and I'm sure other potential employers will recognise this when she explains the situation to them.

 

She could also try and ask for a reference where this quite innocent incident is explained by her manager but that his/her hands were tied at the time.

 

Also, I would suggest your daughter also seeks clarification on her situation at the meeting whereby she could resign. This contradicts what I have explained above but what is there to lose?

 

I wish her well whatever. It is simply one of those things that tend to happen unfortunately.

[JonCris]

many in simular circumstances don't know that they are on the register. or that they will be there for life

 

The police don't tell those they caution & if they did many more would refuse altogether. It's only when the CRB request is sent that they find out there is this record.

 

So eventhough she may have stated she had no convictions in her application & it was found later she had this caution it doesn't mean she has deceived them