Jersey jobseekers are NOT required to declare previous convictions or "out of court disposals" on the Jobseeker's Agreement form if they do not want to - despite the form's blatantly misleading words to the contrary
Link to this disclosure as published on the States of Jersey website (added by me on 27th August 2015 after months of searching):
FOI Reference No: 202-03-61247
Date of Request: 27 March 2015
Date of Response: 24 April 2015Request:
1. Confirm that when income support claimants who are jobseekers are asked to disclose “previous convictions” on their Jobseeker’s Agreement form, the Department requires the jobseeker to include relevant details of any ‘out of court disposals’ obtained either as a child or an adult in the UK and other jurisdictions about which the Jersey Rehabilitation of Offenders legislation is currently silent, for example, UK warnings and cautions or “protected cautions” and “protected convictions”. If it does not require the jobseeker to provide details of such out of court disposals, explain why the jobseeker is not informed of this.
2. Confirm that in spite of the existence of a UK Supreme Court ruling in 2014 declaring that the UK Government had violated a person’s right to respect for private and family life, home and correspondence (article 8 of the ECHR) by disclosing details of two warnings obtained during childhood on that person’s Enhanced Criminal Record Certificate, the Department nevertheless still believes that it is not breaching human rights law by collecting, retaining and sharing substantially the same data (including details of parish hall enquiries) in respect of all Jersey jobseeker benefit claimants.
3. Confirm that when it asks the jobseeker to disclose “previous convictions” on the Jobseeker’s Agreement form, the Department requires the jobseeker to include relevant details of any convictions that are classed as ‘spent’ under the terms of the Rehabilitation of Offenders (Jersey) Law 2001. If it does not require the jobseeker to provide details of such ‘spent’ convictions, explain why the jobseeker is not informed of this or the existence of the Rehabilitation of Offenders legislation.
4. Confirm that the Department extracts the data obtained from the Jobseeker’s Agreement relating to criminal convictions and then uses it for the purpose of providing a general criminal conviction vetting service for the benefit of all prospective employers who contact the Department with details of a vacancy that they wish to fill, whereby such employers are asked at the first point of contact whether or not they will consider employing jobseekers with criminal convictions and depending on their answer, the Department then filters out the applications of certain jobseekers according to their known criminal convictions.
5. Confirm that by offering this criminal conviction vetting service to prospective employers, the Department thereby holds a database of the names of all jobseekers identifying them with respect to their criminal conviction status and that the Department does not routinely supply the information held on this database to jobseekers who make a Subject Access Request to the Department for details held about them by Back to Work and other similar Department entities. States of Jersey Response:
1. The current JobSeeker’s Agreement (JSA) is designed to prompt a conversation regarding previous convictions so that the Employment Adviser can provide advice and assist in the search for suitable employment. The jobseeker is not required to declare previous convictions or “out of court disposals” if they do not want to, but the JSA is intended to promote honesty and to avoid wasted time in putting the client forward for unsuitable roles and to give advice on how to approach discussion of convictions with future employers. The JSA is completed by the adviser with the jobseeker present and is a record of the discussion between them when this is all explained.
2. It is not possible to answer the question with reference to the UK Supreme Court ruling as no reference code has been provided, and that ruling is made in consideration of a specific set of circumstances which may not apply to the department’s processes. However, as stated in the response to part 1, the jobseeker does not have to disclose criminal convictions but disclosing relevant convictions means the employment adviser can ensure the jobseeker is only put forward for suitable roles and this is done with the jobseeker’s agreement.
3. The Jobseeker’s agreement is completed as part of a discussion with the Adviser. Current procedure is that the jobseeker is not required to provide detail of any convictions including spent: it is up to the jobseeker what they choose to disclose. There are some jobs where even spent convictions would still class the jobseeker as unsuitable and so full disclosure ensures the jobseeker is not put forward for unsuitable roles. If disclosing convictions, either spent or unspent, then jobseekers would be advised appropriately regarding the Rehabilitation of Offenders (Jersey) Law 2001 and further advice sought if necessary.
4. The Department does not provide a criminal conviction vetting service for employers.
The current procedure is that employers are asked when placing a vacancy with the Department if the role requires a Disclosure and Barring Service (DBS) check (which the employer would carry out themselves after recruitment). This is asked so that jobseekers whose conviction would prevent them from carrying out certain roles do not apply unnecessarily.
If someone is working on an unpaid work placement organised by the
Department in a role where a DBS check is required then in this case the Department (rather than employer) will organise for this check to take place for the placement to go ahead.
5. The Department does not provide a criminal conviction vetting service for employers and does not have a database of jobseekers to identify them by their criminal conviction status.
Current procedure is that when any barrier or limitation to finding employment, including a criminal conviction, is declared by the jobseeker then it is recorded on the Department’s database if it is relevant to their jobseeking expectations. This information would be provided if requested in a Subject Access Request to the Department.
My comments on the above:
This is a landmark disclosure for me, as it has taken nearly two years of persistent hard work to get to the stage where Social Security have been forced to make a public statement (or any statement for that matter) conceding that jobseekers do not
have to declare previous convictions on the Jobseeker's Agreement form (and presumably that also applies to other 'sensitive personal data' such as health problems and even information of a less sensitive nature). However, read the following statements that appear on the most recent version (5th February 2015) of the Jobseeker's Agreement form and see if you can spot the blindingly obvious contradictions
between what they have said in their FOI response and what their Job Coaches and Mentors are reading out to jobseekers when they are alone together in a private interview room (I have added my own bold font to particularly misleading words or phrases):
Statement 1 extracted from the Jobseeker's Agreement form (version dated 5th February 2015):
“You need to be honest regarding anything which may affect you being able to find, carry out or maintain work – i.e. health problem, criminal record, drug or alcohol problem etc.”
However, what they actually mean to say here is you don't
need to be honest if you really don't want to!
Statement 2 extracted from the Jobseeker's Agreement form (version dated 5th February 2015):
“Should you have any previous convictions, parish hall enquiries or prosecutions pending you need to advise us accordingly.”
However, what they really mean to say here is that you don't
need to advise them of any of the above things if you really don't want to! (and particularly not parish hall enquiries as they are a private hearing
and therefore analogous to UK "out of court disposals" - such as warnings and cautions - the retention and disclosure to third parties of which could violate the jobseeker's article 8 ECHR rights)
There is also a separate box on the first page of the form where details of "criminal convictions"
can be included. However, there is absolutely no further description provided of what constitutes a "criminal conviction". The Jobseeker's Agreement completely fails to inform the jobseeker of the existence of the Rehabilitation of Offenders (Jersey) Law 2001 and its underlying Regulations. Furthermore, it does not inform the jobseeker that offences which are defined as ‘spent’ in accordance with this law need not
be disclosed unless a question is asked in certain specific situations that are listed in the Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002, which are available to read here:
Information relating to criminal convictions and health problems are classed as 'sensitive personal data'
for data protection purposes. This means that the explicit (i.e. absolutely clear) consent of the data subject is required. The UK Information Commissioner’s Office website contains the following information about consent:
“Consent obtained under duress or on the basis of misleading information does not adequately satisfy the conditions for processing.”
In the case of jobseekers, many of whom are desperate not to do anything which could lead to their income support being stopped, I would say that the manner in which the Social Security Department collects this deeply private information is not only clearly misleading but has also been obtained under duress, because the jobseeker is left with the impression not only that the information has
to be provided but that failure to provide it could have serious consequences.
At which point I shall now quote a third and final extract which appears on the last page of the Jobseeker's Agreement, right next to the 'Declaration & Authorisation'
that the jobseeker is forced to sign:
Any person who knowingly makes any false statement or false representation for the purposes of obtaining benefit for themselves or for someone else commits a criminal offence for which they may be prosecuted, and may also be required to repay the amount fraudulently obtained.”
The Adviser / Job Coach has explained the above to me and I understand my obligations and responsibilities as a Jobseeker. I also understand that by failing to comply with Income Support legislation, my Income Support claim may be affected. I am aware of whom and what constitutes my Income Support Unit, and that in the event of my Income Support being affected, all adult members of my Income Support Unit will be notified.
Regarding the threat of prosecution contained in the first paragraph above: whilst this statement would not cause a problem on the main income support application form (when the household declares its income and assets etc. in order to claim benefits), its inclusion for actively seeking work purposes is not only irrelevant but highly misleading. To be clear- the jobseeker cannot be prosecuted for failing to provide the 'sensitive personal data' that the Jobseeker's Agreement requests, yet the statement is strategically placed right above the space where the jobseeker signs to give his/her consent to disclose this information to third parties. It has been placed there in order that it is the most obvious and unavoidable thing that the jobseeker notices as he/she signs the authorisation.
Now here is the worst part of this. Both the Channel Islands Data Protection Commission and the States Complaints Board have received complaints during the last two years about the legality of the consent authorisations contained on the Jobseeker's Agreement and both organisations, in full knowledge, have refused to uphold those complaints. In the case of the States Complaints Board, it refused to convene a public hearing and rejected the complaint at an early stage.
This is a public scandal and refusing to deal with it won't make it disappear (well at least not as long as I'm still around and breathing).