Employment Law

Dark Orb Choir

Loyal Freddie
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Ok, person i know is getting shafted at work.

she isnt in a union

her contract of employment states she needs to tell her employers if she gets charged and/or convicted of a criminal offense, which she did

she works at a place where you need to have a CRB check before you start work there.

that came back fine, when she got charged and convicted of a crime she told the employers, she also told them of her previous police cautions as well at the same time (the police cautions and conviction came after she started work for the employers)


there are 2 types of CRB check, a normal one (which shows convictions)and an enhanced version (which shows cautions AND convitions)

pre employment check was a normal crb.

after she told the employers about her charge/conviction they asked her request an Enhanced CRB check which she did.


now the crux of all this is they are now asking her to request a Subject Access Request form to get more details about her cautions. But as i stated earlier, her contract of employment says she only has to tell them about charges/convictions and a caution is not a conviction, so wtf can she do. This has been gonig on for over 6 months and the emlployers are just trying it on i think.

HR are involved but its not come to a discaplinary yet, any ideas ????

oh and the cautions and conviction are for domestics......

she has been upfront and honest regarding the whole situation, should she get the subject access form or what, it makes no sense as the information thery require is already in ther enhanced CRB. (plus the form can take anythng upto 40 days to get sent to her)
 

Aoami

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The employers are fine to ask for whatever they want. If she says that she doesn't want to do an AR they'll tell her to bugger off.

I assume it's a position in Local Government as a CRA/Home Carer type?
 

MYstIC G

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She should put everything to her employer in writing. These things, in my experience, tend to go really badly because everyone "talks things over" and then lie about what was/wasn't agreed at a later date.

If she doesn't want to do it, then she should write to them saying so.
 

Dark Orb Choir

Loyal Freddie
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The employers are fine to ask for whatever they want. If she says that she doesn't want to do an AR they'll tell her to bugger off.

I assume it's a position in Local Government as a CRA/Home Carer type?


read this

Enforced Subject Access

Under current legislation, individuals can exercise their right to apply for access to information held on them including criminal record information under the 'subject access' provisions of the Data Protection Act 1998. Currently, some employers seek to obtain this information about employees and potential employees by compelling them to exercise their rights under the Data Protection Act. This process is known as 'Enforced Subject Access' and is undesirable because details of all convictions are revealed. Most employers are not entitled to ask for this information under the Rehabilitation of Offenders Act (ROA) 1974.
 

Tom

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They can ask for whatever they like but if the requirement is not in her contract of employment then she does not have to comply.
 

Dark Orb Choir

Loyal Freddie
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She should put everything to her employer in writing. These things, in my experience, tend to go really badly because everyone "talks things over" and then lie about what was/wasn't agreed at a later date.

If she doesn't want to do it, then she should write to them saying so.

meg, shes already done that, shes got minutes of the previous meetings, the employer is asking her to provide something thats not really allowed, it isnt illegal but im sure an employment lawyer would have a field day with it all if it comes to unfair dismissal
 

Dark Orb Choir

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They can ask for whatever they like but if the requirement is not in her contract of employment then she does not have to comply.


true, Tom, the only thing in her contract is to tell thme if she gets charged/convicted of a criminal offense, which she did
 

MYstIC G

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Then I'd suggest that she tell them that they need to show her where in her contract she is required to comply with this request or alternatively let the matter drop.

For the record, I'm afraid I've got no sympathy though.
 

Dark Orb Choir

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i didn't ask for your personal opinion on the merits of her situation just your opinion on the employers requests.
 

MYstIC G

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Tough, they come hand in hand as the realistic top line here is your friend should pay for legal advice.
 

Scouse

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For the record, I'm afraid I've got no sympathy though.

Why? There's a million reasons why you could have a caution for a domestic. Not all of them fair. She could simply live next door to a couple of wankers who ring the police at the first sound of raised voices.

Now she's in a situation where her employer may be acting in an overbearing manner - the added stress of which, theoretically, could make it more likely for any "undesirable" behaviour to surface. (you come home from work depressed, pissed off and feeling got at, hubby makes a snide comment that the house is a tip etc. etc...)

I think you just thought "hmmm, domestics, must be a chav, and I hate them and want to vent my spleen so...."

Cheer up old bean. And try not to be so quick to judge...

...or we could organise some sort of witch-hunt burning?? ;)
 

DaGaffer

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Cautions (plural) and a conviction doesn't sound great though; and that's probably what's attracted her employer's attention; a one off conviction, benefit of the doubt, a series of cautions leading up to a conviction may tell a different story. Point is, we don't know, a. what kind of a job she has, and b. what her conviction/cautions were for, so its impossible to say whether her employer is being reasonable or not. Just because something isn't in the letter of her contract, doesn't necessarily mean an employer doesn't have a valid cause for investigation. I'm sure Brooky isn't going to tell us what she does or what she was nicked for, so this discussion is meaningless...
 

Aoami

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The ball is very much in the employers court when it comes to Criminal Convictions. If she doesn't agree to the AR, and the company in question are a fairly big one, she wont be there much longer.
 

rynnor

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Its a pretty sticky wicket - I think either way they are now looking for an excuse to fire her - if she refuses they'll use that and if she complies they'll use the contents of the report to fire her.

Best advice is to swiftly find another job - better to leave than be fired and currently they couldnt give her a bad reference as no disciplinary.
 

Tom

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Or wait to get fired, get another job, and sue the previous employer for unfair dismissal.
 

Gumbo

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How long has she been employed there for?

If it's less than a year, then there is no such thing as unfair dismissal as long as it's not a discriminatory matter. I think you can still discriminate against criminals so long as they're not one armed lesbian labour voters.

It might help to know what position she is in, because clearly witholding information about criminal convictions etc is going to be far far more serious in some posts than others, and rightly or wrongly, may well impact on the sort of result she could expect if it went to a tribunal.
 

MYstIC G

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I think you just thought "hmmm, domestics, must be a chav, and I hate them and want to vent my spleen so...."

Cheer up old bean. And try not to be so quick to judge...

...or we could organise some sort of witch-hunt burning?? ;)
I'd prefer a werewolf burning :p My comment was actually borne out of a re-read of the first post at which point I then noticed that there were a quantity of cautions. DaGaffer's covered that with more skill than I would be able to though.
 

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