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Disciplinary action due to CRB check results - URGENT


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I work as a delivery driver for a pharmacy. I have been with them for around 3 months now.

The job required a CRB check which came through yesterday showing a reprimand and a final warning I got when I was under 17 (kids cautions pretty much).

 

The Police National Legal Database says:

Cautions are now covered by the Rehabilitation of Offenders Act 1974 so will become spent immediately (apart from conditional cautions which will become spent after 3 months). This means that if you are asked on an application form if you have a caution you can reply 'no'. For conditional cautions it would be after 3 months since the caution was issued, up until that time you would have to reply 'yes'.

 

Thus, I would not have to declare a caution on my application form because it is spent.

 

The exact wording of the application form was as follows:

Do you have any court/criminal convictions, outstanding summons or prosecution (exclude spent convictions under the Rehabilitation of Offenders Act 1974).

 

Please note that giving false information may mean you are subject to disciplinary action, which could include dismissal.

 

Now, the application does NOT mention cautions, warnings, reprimands. It does NOT ask you to disclose those. I do not have any convictions, only a reprimand and final warning (kids cautions). Therefore, I did not declare them. And even if it did ask for them, the application clearly says to exclude spent convictions. Under the Rehabilition of Offenders Act, cautions are automatically spent so I wouldn't have to declare it anyway.

 

I have been suspended, with full pay, until the coming Monday morning which is when I have to go for a disciplinary meeting. I have been told that I will either receive a Final Written Warning or instant dismissal. This is not due to the fact of my actual warnings but the fact I did not state them.

 

But according to what I have read and said above, I surely do not have to. Therefore surely it would be against employment law and the Rehabilition of Offenders Act to give me any disciplinary action of any sort??

 

I would greatly appreciate advice on the matter. As you can imagine, it is now Saturday and my disciplinary is on Monday. I need urgent advice and I would like to get hold of a solicitor....not an easy task at the weeked. So if anyone is aware of anywhere I can get urgent advice today, would be appreciated.

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All convictions/cautions show on an enhanced CRB, even those from a child. This is unfair in most cases IMO. Depending on the reason why you received the caution, I cannot see why you are being disiplined. The CRB should be looked at in context, i.e. the reason you received the caution and the fact that you were 17 yo at the time. As the application was specific, my view is that you completed it honestly, therefore it seems a little unfair for them to discipline you.

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It would certainly seem to me that you are being treated most unfairly, and are fully entitled to ask exactly what you have been suspended for. Clearly you have answered honestly on the application form, and hopefully this will be established and you will be returned to work immediately. You need to go to the meeting well prepared with the information that you have put in your original post to demonstrate that you have been 100% truthful according to what was asked of you.

 

I am a little surprised that the application form was worded in quite that way if they were going to apply for an enhanced CRB, as you correctly say that ALL information is shown on that whether spent or not. You must have given permission on the application for them to do this - are you sure that there was no 'small print' relating to the CRB that you have missed? If not, then you should not be dismissed or even warned. The big BUT is that there is little that you could do if they were to dismiss you with only a short period of service, unless you could prove a discriminatory motive for them acting in that way. You would certainly be wrongfully dismissed if that were to happen, but your only remedy would be to sue, and any damages would be limited to actual losses, normally equivalent to the amount that you would have been given if notice had been given.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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If it specifically says to exclude spent ones - and yes, an enhanced check shows everything even some things which were reported and didn't even result in a caution - and the Act says that caution is spent, I don't see how you could have committed any misconduct omitting them by following their instructions!

 

If there wasn't such a short timescale I'd definitely say seek legal advice - forums like this are great but for really important things like this, probably not verifiable enough.

 

The thing is, you've only been there three months so legally, there probably isn't anything they can do if they do get rid of you, there's probably some clause in the employment legislation or your contract saying they can, sadly.

The above post constitutes my personal opinion on the facts in the post compared with my personal knowledge of the applicable legislation. I make no guarantees of its legal accuracy. If you are in doubt seek advice of a legal professional specialising in the area concerned.

 

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Hello,

You may want to get in touch with Nacro as they give free information & advice concerning CRB checks and what your rights are if you become suspended or dismissed from employment due to what the CRB check brings up......

I wish you all the best

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Just a small point on enhanced CRBs. They do not show always show all previous cautions / reprimands etc...

 

Someone I know received a formal caution when they were 19. There is no mention of this on their enhanced CRB, and when they recently had to give evidence in a criminal court case as a prosecution witness the police ran a full PNC check on them, which showed up nothing whatsoever.

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Join a Union

Advice and comments posted by The Debt Star reflect only my personal opinion and it is up to you alone to decide what action you should take. You should always seek independent legal advice from your own qualified legal advisor.

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I know someone pretty close to me who has to have a CRB enhanced check done periodically. I know for a fact that they have a criminal conviction from 13 years ago for deception, but it does not show on their CRB check. They are an honest and hard working person, but it does just show that the 'system' is flawed in both directions.

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Join a union for next time those bstards try to grind you down.

Advice and comments posted by The Debt Star reflect only my personal opinion and it is up to you alone to decide what action you should take. You should always seek independent legal advice from your own qualified legal advisor.

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  • 7 months later...

This is an old post you can now close.

I did win against my employer - they weren't able to let me go and I got off scott free after presenting all the evidence, relevent employment legislation (ROA act), etc. :)

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Congratulations and pleased to hear your good news.

 

Are you able to elaborate on exactly why they were not able to dismiss?

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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I would also ask why you ACTUALLY require an ECRB for the post that you hold, quite often employers ask for CRB when there is no legal requirement.

 

I am sure there was a case involving a security guard at a factory, liverpool?, who becasue children visited was required to get a crb and when he refused was threatened with dismissal, I don't think it got as far as an ET, could be wrong, point was that the employer had no lawful reason for him to have CRB check, he didn't work with or have regular contact with children.

 

You could check out CRB website for requirements ?

 

Good luck

W_W

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