Did the supermarket in EastEnders break the law in doing a DBS on Derek? And why did a historic decriminalised offence show up on his disclosure?

Historical criminal records were a focus of EastEnders last week. Soaps can provide a really effective way of engaging with the public, which is why I was concerned to see the way the story panned out.

Derek, who was employed by Minute Mart (a small supermarket), had recently been employed through a back-to-work scheme for older people and had worked there for about two months.

But Yolande, who worked in HR for the company, had some bad news for him:

“It turns out there’s a problem with your DBS check…It appears you failed to declare a criminal record…If you give me your side of the story, I can go to the meeting prepared and fight your side of the corner. I’ll find out the truth when I get back to head office anyway so why not just save some time and tell me now. If you’re not honest with me, I can’t help you.”

Most people with convictions will be familiar with what happened next. He wasn’t given an opportunity to explain; he simply received a call saying that he’d been dismissed.

So, what had he done?

When he was 22 (he must now be in his early 60’s) he had been in a relationship with a man who was 20 at the time. Given the age of consent for gay/bi men was 21 at the time (it wasn’t lowered to 18 until 1994, and 16 in 2001), he was convicted of gross indecency and sentenced to 9 months.

The offence was decades ago — so why did it come up?

A key fact is useful at this point. As the law stands now (which is what applies in this case, regardless of when the conviction was), a 9-month prison sentence becomes ‘spent’ (under the Rehabilitation of Offenders Act 1974) four years after the end of the full sentence.

Derek had applied for a job in a supermarket. Roles like that are covered by the Rehabilitation of Offenders Act 1974. That means companies with these roles (like Minute Mart) should only ask applicants to disclose unspent convictions. Derek’s conviction was spent, so he had nothing to disclose. The fact that he admitted to lying on the form suggests that Yolande needs to go back to her HR colleagues and get them to change their wording (I’d suggest this guidance as a good place to start).

How were they allowed to do a DBS check?

Worryingly, Yolanda mentioned a “DBS check” — that’s code for a standard or enhanced check, because although there are three levels of check (basic, standard and enhanced), the DBS don’t currently provide basic disclosures.

Importantly, a supermarket role would only be eligible for a basic criminal record check, so it sounds like Minute Mart did an ineligible check. That would explain why Derek’s conviction from decades ago came up — because DBS checks disclose spent convictions.

It is also highlighting a problem we see a lot at Unlock — why didn’t the DBS stop this type of check being processed and issued? That’s perhaps a discussion for a different day!

According to gaytimes, EastEnders has been working with the Home Office on developing the story, so it’s surprising that the BBC got this bit wrong. Unfortunately, they’re not alone — we’ve highlighted many case studies where employers have tried to (and in many case being allowed to) carry out ineligible checks. It’s a missed opportunity to challenge the commonly held view that any job can involve an enhanced DBS check!

But the offence has been discriminalised — surely it shouldn’t have been disclosed?

Setting aside the ineligible check, instead let’s say Derek had applied for a job as a teacher in a primary school. That would clearly involve an enhanced DBS check.

In last Friday’s episode, it was good to see Jonny helping Derek with what’s known as the ‘disregard’ process. “The Home Office has something called the disregard scheme” he says. “Anyone convicted of gross indecency offences can apply to have the charges removed from their criminal record.”

What followed is important: “What happened to fighting for what you believe in”, says Jonny. “You’re a coward Derek. You talk about fighting for my rights. What about yours”.

He was highlighting a key problem with the disregard process — you have to apply for it. Chris Bryant MP summed up the problem with this in his contribution to the second reading of Sexual Offences (Pardons) Bill in October 2016:

“There is a real problem about trying to force people to go through another process. For someone now in their 70s or 80s, the conviction might have been like a brand on them for their entire life. It might have caused terrible problems in their family life. It might have meant that they were never able to do the job that they wanted to do, such as a teacher not being able to go back to teaching. Friends and relatives might have shunned them. It might have made them feel terribly ashamed. Why on earth would they want to write to the Home Secretary, asking, “Please may I be pardoned?” Why on earth would they want to go through that process all over again? Why on earth would they want someone to analyse whether they were guilty of something way back when?”

Despite pushes for the law to go further, the government kept an application process. Although Unlock has guidance for individuals, the number of people applying to the disregard process is very low. I don’t find that surprising. That’s why I support changes to the disregard process. The Home Office should establish a system where offences of gross indecency are automatically flagged and not be disclosed to employers before further investigation (to check that it was consensual etc). They found a way of doing this with the DBS filtering process, so it can be done here too. Otherwise, cases like Derek’s will continue to happen, because people can easily forget things that happened decades ago, and more often think that surely that wouldn’t be disclosed now!

So had he lied to his employer?

It’s not clear what they’d asked him to disclose, but given he says he lied, it seems like he did. But that doesn’t mean he’s done anything wrong.

Technically, because of the job that he was applying for (i.e. one that is covered by the Rehabilitation of Offenders Act 1974) he was allowed to “legally lie” because his conviction is now spent. That applies no matter what question they asked him.

From the employers’ perspective, it’s likely that they got both their question and the level of check wrong. I regularly come across employers that do this; that’s why Unlock has guidance about asking questions and doing the correct level of check.

What should happen next?

I’ve not watched every episode since, but I hope that:

1. Minute Mart recognises what they’ve done wrong (taking into account a spent conviction when they shouldn’t have) and give Derek his job back.

2. The supermarket is contacted by the DBS about the ineligible check — but I’m not holding my breath on that one!

3. They show Derek successfully applying for his record to be ‘disregarded’.

These three things would help me to conclude that the storyline has been worthwhile — but as it stands, it raises more questions than it answers!

Let me know your thoughts. Leave a comment below.