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Employers should disclose previous convictions only where there is 'pressing need'

18 April 2011

Employers should only disclose details of a worker’s previous convictions to other organisations where there is a “pressing need”, appeal judges have ruled.

The case concerned a disabled man, referred to as H, who had been convicted of indecently assaulting a young blind boy.

H and his partner L run a company which works with disabled adults across the country and has contracts with universities and other public bodies.

The court heard that an unnamed local authority was informed about H’s conviction by another council and reacted by convening a “strategy meeting” involving representatives from the council, the university, the NHS and police officers.

Following the meeting, a manager at the council’s safeguarding children service informed nine organisations about H’s conviction, including the council disability service, the university, the PCT and the Refugee Council.

Delivering the leading judgment in H and L v A City Council [2011] EWCA Civ 403, Lord Justice Munby said the issue was “essentially one of proportionality”.

He went on: “Information such as that with which we are here concerned is to be disclosed only if there is a ‘pressing need’ for that disclosure.

“There is no difference in this context between the common law test and the approach mandated by article 8. The outcome is the same under both.”

Referring to the leading Supreme Court case of R (on the application of L) v Met Police Commissioner [2009] UKSC 3, Munby LJ said that article 8 applied to this case, just as it did to that (see solicitorsjournal.com, 3 November 2009).

He said the council had implemented its decision at the strategy meeting in a “profoundly unfair way” in that it was “behind H’s back” and “without giving either H or L any opportunity to have their say before tardily confronting them with a fait accompli”.

Lord Justice Munby said neither the council nor the judge at first instance had “engaged with the critically important fact that H and L do not work with children.

“The local authority adopted a ‘blanket’ approach, its stance being that H should stand down from all the bodies and committees he was involved with and that it would make disclosure to all H’s known contacts and, indeed, to any further contacts of which it became aware.

“This approach – in marked contrast with the approach the local authority adopted only six months later – was, in my judgment, neither fair nor balanced nor proportionate.”

Munby LJ allowed H and L’s appeal. Lord Justice Hooper agreed, as did Lord Justice Pill, for his own reasons.

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