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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70225
Experience:  Qualified Solicitor
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I have a query on employment law, no-one as of yet. I need

Customer Question

Hi, I have a query on employment law
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: no-one as of yet. I need some advise on BPSS clearance when you have a criminal record
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: employees and contractors
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I don't think so
Submitted: 7 days ago.
Category: Law
Expert:  Ben Jones replied 7 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 7 days ago.

Hi there. Please explain your query in some more detail so that I can best advise?

Customer: replied 7 days ago.
approx 11 years ago I was in a dark place while going through a nasty divorce and I chose the internet as a means to escape life. Unfortunately while I was doing this I downloaded and viewed indecent images of children. I got convicted of this, received 9 months custodial and I believe a disqualification from being able to work with children. I have never worked with children anyway and to date this has continued. I recently applied and got appointed to work on a nuclear site which required BPSS clearance. Because of the timescale I knew the conviction was considered spent so I assumed being that it was a nuclear site there would be on children on site (since it has been made aware to me that their rules are no one under 16 years old on site rather than under 18). Due to Covid 19 there has been a delay in getting this clearance and they have just come back to say they cannot support my application for BPSS clearance- reasons I believe are that they may have apprentices under 18 years on site. My role involves dealing with contractors that come to site so they have been all well over 18 years old. Is there anything I can do to get them to reconsider- Are they applying the rules of any disqualification of working with children incorrectly as I don't believe there is anyone 18 or under on the site and certainly not ones that I can interact with. My understanding was that a disqualification of working with children stopped me being in charge of them rather than being in the vicinity or building
Expert:  Ben Jones replied 7 days ago.

OK and can I just check, what official reason did they provide for not supporting your application for BPSS clearance?

Customer: replied 7 days ago.
verbally I have been told it is because there rules are that 16 years and under are not allowed on site but they may have 17 year olds- Now I have never seen any young people on site. officially I don't think they have given a reason or explanation- do they have to? I should make it clear that my employment has been with a Facilities Management company who are tasked with carrying out maintenance works on site but employment is conditional on achieving BPSS clearance
Expert:  Ben Jones replied 7 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Customer: replied 7 days ago.
Their belief is that the disqualification means that I cannot be on site as they may have 17 year olds on site now or in the future. They have advised if I can clarify if a disqualification means 16 years and under or 18 years or under by obtaining the exact wording from the court there may be a way to query this
Customer: replied 7 days ago.
This obviously isn't something I can obtain straight away
Expert:  Ben Jones replied 7 days ago.

OK, leave it with me and I will get back to you at the earliest opportunity. Many thanks

Expert:  Ben Jones replied 7 days ago.

Many thanks for your patience. Legally, it is going to be rather difficult to get them to change their mind, particularly as they are able to make a decision to withhold such clearance in any event, even if you were not barred from working with children. For example, they could simply decide that your past is something that does not fit with their values or they may still consider you a risk, however minor. Just because something is considered spent does not mean it cannot be considered against you still. The spending of convictions is there to try and give you a clean slate after some time but it dos not apply to all roles and this one will be exempt from the Rehabilitation of Offenders Act anyway and not subject to the rules on spent offences.

To put it bluntly, even if you meet all the criteria for employment there, there is no ‘right’ to be given a job by them and they cans till decide not to employ you or provide clearance to allow you to work there if they do not believe you are suitable. They still have an obligation not to discriminate against you, such as refuse your employment due to race, religion, gender, age, disability, but these are not applicable here and there is no discrimination against not employing someone due to previous criminal record unfortunately.

Hopefully this explains your position