DBS check / Data Protection Breach

Burnz0

I’m not sure if this is the best place to post this but here goes:

Early last year i was offered a job but 2/3 days before my start day the offer was withdrawn due to the company finding out about me having a criminal record. Even though the role is not eligible for anything other than the basic level DBS check, & therefore any check should have come back clear, they requested a higher level Standard Check & something came up & they subsequently withdrew the offer due to me being dishonest & not disclosing it. Importantly, by law, I was not required to disclose it & they shouldn’t have even mentioned doing a higher level check as they’re not entitled to ask & by asking it puts the candidate in an awkward situation of disclosing, lying or refusing due to it not being appropriate - all three likely to result in no offer.
I’ve contacted the DBS & they’ve confirmed what I thought and I have full written report of their investigation to explain that. They’ve even go so far as to remove the 3rd party the prospective employer paid to request the checks from their approved list. They’ve agreed I never gave consent for the higher level check as would be required given it was not eligible for anything other than a Basic. Since I didn’t give consent the employer shouldn’t have past my information over to the 3rd party so there has also been a data breach.
The ICO have looked into it too & agreed it was a data protection breach but are not taking action & do not ever enforce compensation as is their policy. (I’m told only 4% of data protection breaches ever result in any fine etc so I’m not too surprised anyway).
I am now considering seeking compensation through the small claims court to cover my costs for travelling to the interviews, damages & something towards the fact that I then had to find another job as I’d wasted time on them.
I’m just wondering if anyone can opine on whether I have a case & likely to get anything? It’s not something I want to waste loads of time on as I’m now back in work (2/3 months later) & it’s too much hassle & stress to carry it on. However, in my view at least, I do have a strong case and I think the firm should be financially punished. At worst, it may cost be a few hundred to take them to court & im willing to risk that.
Any thoughts appreciated!

Undervalued

Burnz0 wrote: »

I’m not sure if this is the best place to post this but here goes:

Early last year i was offered a job but 2/3 days before my start day the offer was withdrawn due to the company finding out about me having a criminal record. Even though the role is not eligible for anything other than the basic level DBS check, & therefore any check should have come back clear, they requested a higher level Standard Check & something came up & they subsequently withdrew the offer due to me being dishonest & not disclosing it. Importantly, by law, I was not required to disclose it & they shouldn’t have even mentioned doing a higher level check as they’re not entitled to ask & by asking it puts the candidate in an awkward situation of disclosing, lying or refusing due to it not being appropriate - all three likely to result in no offer.
I’ve contacted the DBS & they’ve confirmed what I thought and I have full written report of their investigation to explain that. They’ve even go so far as to remove the 3rd party the prospective employer paid to request the checks from their approved list. They’ve agreed I never gave consent for the higher level check as would be required given it was not eligible for anything other than a Basic. Since I didn’t give consent the employer shouldn’t have past my information over to the 3rd party so there has also been a data breach.
The ICO have looked into it too & agreed it was a data protection breach but are not taking action & do not ever enforce compensation as is their policy. (I’m told only 4% of data protection breaches ever result in any fine etc so I’m not too surprised anyway).
I am now considering seeking compensation through the small claims court to cover my costs for travelling to the interviews, damages & something towards the fact that I then had to find another job as I’d wasted time on them.
I’m just wondering if anyone can opine on whether I have a case & likely to get anything? It’s not something I want to waste loads of time on as I’m now back in work (2/3 months later) & it’s too much hassle & stress to carry it on. However, in my view at least, I do have a strong case and I think the firm should be financially punished. At worst, it may cost be a few hundred to take them to court & im willing to risk that.
Any thoughts appreciated!

That is not the function of a civil court. In fact, if that is your motivation in bringing the case, it is strictly speaking an abuse of process.

However, if you have suffered a quantifiable loss that was caused by another party's errors or negligence then you can certainly seek compensation for your actual losses.

The spent conviction rules create a strange situation where a candidate for a job can legally lie and the prospective employer can (theoretically) do nothing about it.

If the job you have now secured pays a similar salary then your only losses are, as you say, expenses in travelling to other interviews (if these were not reimbursed??) and any additional time you were out of work.

I would suggest you seek legal advice before proceeding.

motorguy

Burnz0 wrote: »

I’m not sure if this is the best place to post this but here goes:

Early last year i was offered a job but 2/3 days before my start day the offer was withdrawn due to the company finding out about me having a criminal record. Even though the role is not eligible for anything other than the basic level DBS check, & therefore any check should have come back clear, they requested a higher level Standard Check & something came up & they subsequently withdrew the offer due to me being dishonest & not disclosing it. Importantly, by law, I was not required to disclose it & they shouldn’t have even mentioned doing a higher level check as they’re not entitled to ask & by asking it puts the candidate in an awkward situation of disclosing, lying or refusing due to it not being appropriate - all three likely to result in no offer.
I’ve contacted the DBS & they’ve confirmed what I thought and I have full written report of their investigation to explain that. They’ve even go so far as to remove the 3rd party the prospective employer paid to request the checks from their approved list. They’ve agreed I never gave consent for the higher level check as would be required given it was not eligible for anything other than a Basic. Since I didn’t give consent the employer shouldn’t have past my information over to the 3rd party so there has also been a data breach.
The ICO have looked into it too & agreed it was a data protection breach but are not taking action & do not ever enforce compensation as is their policy. (I’m told only 4% of data protection breaches ever result in any fine etc so I’m not too surprised anyway).
I am now considering seeking compensation through the small claims court to cover my costs for travelling to the interviews, damages & something towards the fact that I then had to find another job as I’d wasted time on them.
I’m just wondering if anyone can opine on whether I have a case & likely to get anything? It’s not something I want to waste loads of time on as I’m now back in work (2/3 months later) & it’s too much hassle & stress to carry it on. However, in my view at least, I do have a strong case and I think the firm should be financially punished. At worst, it may cost be a few hundred to take them to court & im willing to risk that.
Any thoughts appreciated!

Did they specifically say in writing it was because you hadnt disclosed it, or was it because they had been made of the offence?

I think you've spent too much time on it already.

I think taking them to court could enlighten your current employer to the "issue", if it was reported in the press, got out, etc for what might only amount to travel expenses incurred.

Its a tough one. Personally i'd let it go. You've another job now anyway.

theoretica

There are a number of organisations which support people with convictions getting back into work. I'm afraid I don't know any to recommend, but I imagine they might be interested and have relevant knowledge and advice.

Undervalued

motorguy wrote: »

Did they specifically say in writing it was because you hadnt disclosed it, or was it because they had been made of the offence?

I think you've spent too much time on it already.

I think taking them to court could enlighten your current employer to the "issue", if it was reported in the press, got out, etc for what might only amount to travel expenses incurred.

Its a tough one. Personally i'd let it go. You've another job now anyway.

Indeed. It would of course be unlawful for them to take any action but in the real world......

I would be amazed if the employer had given that as a reason, as they are leaving themselves wide open. However I suppose a smaller company or an inexperienced recruiter might not have known?

Dox

I can understand your anger, but there are so many downsides to pursuing it further that letting the matter rest is likely to be in your best interests - and that's what you need to focus on, not 'punishing' a third party.

[Deleted User]

How did they perform a standard DBS check without you completing it anyway?

Undervalued

MarkN88 wrote: »

How did they perform a standard DBS check without you completing it anyway?

I agree it is not totally clear but I think the OP implies that he did give the necessary consent for a basic level check, which is all that the employer was legally entitled to request.

The fault seems to lie either with the agency the employer used who either mistakenly (or deliberately at the employer's request?) unlawfully applied for an enhanced check.

On the face of it the OP has a valid claim against the employer but whether it is wise to pursue it is less clear!

motorguy

Undervalued wrote: »

I would be amazed if the employer had given that as a reason, as they are leaving themselves wide open. However I suppose a smaller company or an inexperienced recruiter might not have known?

I would say it was more a case of, had we not known about it we wouldnt have cared, but now that we do, we cant ignore it.

Undervalued

motorguy wrote: »

I would say it was more a case of, had we not known about it we wouldnt have cared, but now that we do, we cant ignore it.

Except of course it is unlawful for the employer not to ignore it!

Burnz0

‘Punish’ was a poor choice of words. My motivation is to be compensated for the time I wasted etc & it’s a bonus that the company would have to fund it.
Due to it being a small company they outsource those types of functions to the 3rd party who do only that. Since they were on the DBS’ approved list the DBS rely on them to make sure they follow process properly - if the role is eligible, have consent been given etc. The DBS don’t check all that as it’s unrealistic for them to know the ins & outs of every job. Now they do know the detail they’ve removed them from their approved list.
The reason the employer gave was that by not actively disclosing my record it was a breach of trust in the relationship.

I’d be surprised that a claim like this might reach the press/my current employer but it is a consideration.
My main concern is whether I’m likely to get anything out of it. It’s hard to quantify money lost in between jobs as what’s a reasonable time to attribute to them? If it’s just the travel fares it’s not worth it.