Interesting Dilemma

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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

ovalball wrote:
Sundy wrote:Is it a Park Run?
No.
How organised is it? Is it run as a business? Do they wear uniforms of some description even numbers or hi viz?
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Mahoney
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Re: Interesting Dilemma

Post by Mahoney »

What's the point of all the legal discussion? ovalballs doesn't officially know. No-one has told him, and he hasn't told anyone in real life that he's found out. If arse covering were the problem he's already covered.

It's a moral dilemma he has here - either to do his best to forget he ever found out, or to take action. If he goes with the latter the obvious course as far as I can see is to go to a mental health professional with knowledge of the judicial system relating to people who have had psychotic episodes, to whom he can explain the exact circumstances and who can then give advice from a position of expertise and knowledge. Randoms on the internet can suggest which of those two courses of action they think is more morally appropriate, but spouting anything else is nonsense.
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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

Mahoney wrote:What's the point of all the legal discussion? ovalballs doesn't officially know. No-one has told him, and he hasn't told anyone in real life that he's found out. If arse covering were the problem he's already covered.

It's a moral dilemma he has here - either to do his best to forget he ever found out, or to take action. If he goes with the latter the obvious course as far as I can see is to go to a mental health professional with knowledge of the judicial system relating to people who have had psychotic episodes, to whom he can explain the exact circumstances and who can then give advice from a position of expertise and knowledge. Randoms on the internet can suggest which of those two courses of action they think is more morally appropriate, but spouting anything else is nonsense.
Alas. Being unaware won't make you not liable. Being aware and taking reasonable steps will make you less so. Being aware and doing nothing more so. The incident has to be related to the role, being upset at a cheat or a decision may be enough. That's without a criminal record or looking in to duty of care. Take a look at the recent Morisons case. Where an employee got upset at a customers actions, followed them to their car and punched him in the face. Morisons had no reason to believe the employee was dangerous and they got done. Now if he had previously been violent and they put him in that position?

This is without the potential for a judge to decide that although the current tests don't fit the claim it may be prudent to refer it to a higher court to seek clarification on a specific incident. Is it worth it?

On the moral side of it, how about attempting to look at it through hindsight. If he did kill someone what what the moral judgement be? Should have done more? Could have done more?
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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

DAC. Having read the ruling in the Morisons case I'd say your friend should seek advice.
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Mahoney
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Re: Interesting Dilemma

Post by Mahoney »

dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
ovalball
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Re: Interesting Dilemma

Post by ovalball »

Mahoney wrote:
dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
Spot on. I'm not in the slightest concerned about the legal side. I'm not even entitled to do CRB checks on members - so I'm happy enough that I have no legal obligations - it's also why I do not allow minors at the club.

The dilemma is purely one of conscience.
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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

Mahoney wrote:
dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
FFS the duty of care is around the identified risk and how he deals with it, he most defiantly has a duty of care to deal with the situation and if it ever came to light that he knew and did nothing he'd be wide open. The vicarious liability not only applies to jobs but "job like situations" including sports clubs and their members. Liability is not limited to big organisations! In fact he is more exposed being small and unincorporated. Like I've said all along, I'm not saying anything is likely or not. I'm saying deal with it professionally, the "duty" in duty of care and the "trust" in position of trust are the clues to the moral obligation.
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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

ovalball wrote:
Mahoney wrote:
dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
Spot on. I'm not in the slightest concerned about the legal side. I'm not even entitled to do CRB checks on members - so I'm happy enough that I have no legal obligations - it's also why I do not allow minors at the club.

The dilemma is purely one of conscience.
You've identified a risk so you have a legal obligation. You have a duty of care both moral and legal.
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence
ovalball
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Re: Interesting Dilemma

Post by ovalball »

dr dre2 wrote:
ovalball wrote:
Mahoney wrote:
dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
Spot on. I'm not in the slightest concerned about the legal side. I'm not even entitled to do CRB checks on members - so I'm happy enough that I have no legal obligations - it's also why I do not allow minors at the club.

The dilemma is purely one of conscience.
You've identified a risk so you have a legal obligation. You have a duty of care both moral and legal.
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence
I understand what you are saying - but I disagree. The professional authorities will have made the risk assessment and concluded that he is safe to be in society. Those authorities don't warn everyone that he comes in contact with, with respect to him, hence, I can't see I have a legal obligation to do so. I can't even check his record or find out who I would have to speak to to follow up.

So, the legal responsibilities really don't concern me.
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dr dre2
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Re: Interesting Dilemma

Post by dr dre2 »

ovalball wrote:
dr dre2 wrote:
ovalball wrote:
Mahoney wrote:
dr dre2 wrote:Alas. Being unaware won't make you not liable.
The idea that someone who runs a tiny private club on a voluntary basis is liable for the actions, not of its officers but of its members, where there are no juniors involved, to the point where they would be advised to do a background check on anyone looking to join on the off chance they had been psychotic in the past, sounds like self-evidently grade A horseshit to me. If ovalballs had never googled this chap and the first he knew of any psychosis was when he killed some other club member I don't believe there's a snowball's chance in hell that ovalballs would be held liable by the law.

Anyway, I suspect this is all besides the point. I would be very surprised to hear that legal culpability is what's exercising ovalballs in this case.
Spot on. I'm not in the slightest concerned about the legal side. I'm not even entitled to do CRB checks on members - so I'm happy enough that I have no legal obligations - it's also why I do not allow minors at the club.

The dilemma is purely one of conscience.
You've identified a risk so you have a legal obligation. You have a duty of care both moral and legal.
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence
I understand what you are saying - but I disagree. The professional authorities will have made the risk assessment and concluded that he is safe to be in society. Those authorities don't warn everyone that he comes in contact with, with respect to him, hence, I can't see I have a legal obligation to do so. I can't even check his record or find out who I would have to speak to to follow up.

So, the legal responsibilities really don't concern me.
It's not that simple.

You have to assess if he's suitable for your setting. If there is anything about him that posses a threat to it and if there is, what can be done to mitigate it.

A bank robber may be considered rehabilitated, it is not illegal to employ him to work in a bank (it actually maybe it's just a rough example) it is probably negligent to give him the keys to the safe. You may do so and it may never be a problem, but if he robs the bank? You've not done anything wrong until, something goes wrong. And if it does people WILL hold you responsible. Just because it's not watched as closely as child care it doesn't mean you don't have to take care and can't get in trouble with it if you don't.

I realise this is not quite direct advice for you. But it's more similar than you may think.

The social justice charity NACRO suggests:
What information should I consider when determining whether an applicant with a criminal record is suitable for the post applied for?

An assessment of the applicant’s skills, qualifications, experience and conviction circumstances should be weighed up against the risk assessment criteria for the job. To determine whether a criminal record is relevant, the information should be assessed in relation to the tasks which need to be performed and the circumstances in which the work is to be carried out. You might like to consider the following when deciding whether the offence is relevant to the post applied for:

Does the post involve one-to-one contact with children or other vulnerable groups as employees, customers or clients?
What level of supervision will the post-holder receive? Is it unsupervised? Does it involve working in isolation?
Does the post involve any direct responsibility for finance or items of value?
Does the post involve direct regular contact with the public?
Will the nature of the job present any opportunities for the post-holder to reoffend in the course of work?
Are there any safeguards which can be put in place to minimise any potential risks?
If a shortlisted applicant who meets the requirements of the person specification discloses a criminal record that is not related directly to the post, you should conduct a risk assessment which includes meeting with the applicant to discuss the relevance of their criminal record. On the basis of the information provided, you should take into account the following:

Nature of offence(s)

What type of offence or offences did the individual commit? i.e. theft, fraud, violence, possession of drugs, supply of drugs, sexual offences, public order or other offences. Did the offender commit one type of offence or a range of different offences?

Relevance

You should consider whether the offence is relevant to the position in question. The relevant categories of offences in relation to the protection of children are generally considered to be serious, violent, sexual and drug-related offences, although the nature of the offence is not the only factor that ought to be considered. For example, a person with a previous history of drug-related convictions who has clearly moved on from that period may be particularly well-suited to support others with substance misuse problems. They should not be discounted simply on the basis that they have drug-related convictions.

For work with vulnerable adults, the relevant categories are generally considered to be violent and sexual offences. Offences of dishonesty such as fraud may be relevant if the nature of the post involves unsupervised access to money and valuables. However, even here, one should distinguish between offences. An offence of shoplifting, for instance, might not be a particular cause for concern, though an offence of theft from an individual very likely would be. Beyond these, there are a wide variety of offences that have little relevance, such as public order offences.

Drink-driving offences are not generally considered relevant unless the job itself involves driving e.g. taxi driver or a bus driver.

Seriousness

You should consider the seriousness of any offence or allegations disclosed. This is important because all offence categories cover a very wide range of offences that vary in terms of seriousness. A sexual offence, for instance, covers everything from young men sleeping with their underage girlfriends to indecent assault and rape. Violence covers everything from slaps and smacks, normally recorded as battery or common assault, to grievous bodily harm and murder. Drug offences cover everything from possession of small amounts of cannabis for personal use to possession of class A drugs with intent to supply. Burglary covers everything from taking goods from shop storerooms to entering the homes of elderly people, leaving them in fear. Arson ranges from setting fire to litter bins to destroying property and endangering lives.

The name of the offence (the offence code) can often make the incident sound more serious than it was; which is why it is extremely important to gain further details of what actually took place and to consider the other factors listed here.

Offence circumstances

Who was involved? What happened? Where did it happen? When did it happen? How did it happen? Why did it happen?

You should consider the circumstances and the explanation offered by the applicant. Consider whether there were any aggravating or mitigating circumstances. What was the applicant’s attitude to their offending? Did they show any remorse or take responsibility for their actions? Did they try to make reparation to any victim?

In particular, take into account the applicant’s own circumstances at the time of the offending behaviour including issues with accommodation, education, employment, management of finances and income, lifestyle and associates, relationships, drugs and alcohol, emotional well-being or health.

An explanation of the circumstances surrounding an offence will often be plausible and reassuring. For instance, the person who explains that, in fear and panic, they ended up assaulting someone who was threatening them during a bar fight, may not be as culpable as an individual who caused serious injury with intent during an armed robbery. It is important to bear in mind that only a small minority of offences take place in a work setting. You should also consider that a person convicted of a serious offence may have completely changed their life around for the better.

It is important to be aware that it is incredibly difficult for an applicant seeking to show themselves in the best possible light to a prospective employer, to have to then discuss past matters that they may feel ashamed or embarrassed about. Taking that into account, you should look for openness and honesty, rather than denial and minimisation. You should consider the applicants’ insight into their own behaviour, any indication of changed thinking, relevant changes in their circumstances and, where relevant, victim empathy rather than victim blame or shared responsibility.

Age of offences

Employers should consider the length of time that has passed since the offence that has been disclosed took place. Cautions or convictions that appear on a disclosure certificate may be very old, for example, dating back to when the person was growing up. They may not be relevant in many instances because applicants have put their past behind them.

The government recognises that people can and do put their offending behind them. This recognition is embodied in the Rehabilitation of Offenders Act 1974 (ROA) and by the introduction of the filtering system for positions subject to standard or enhanced disclosure checks. Reoffending statistics in the UK indicate that if individuals go a little more than two years without reoffending, they are no more likely to offend than those who have never offended.

Pattern of offending

Employers should consider whether the applicant committed a single offence, or whether there has been a pattern of offending behaviour or allegations. Is there a big gap between offences, or are there a number of offences within a short period? People who have a pattern of offending right up to the present date may not have put their offending behind them.

Those people with gambling, drink or drug-related convictions, in particular, may remain a risk unless there is evidence of a clear break in the pattern of their offending. Nevertheless, many offenders, including repeat offenders, do eventually give up crime and settle down. They may have a particular motivation for doing so (e.g. becoming a parent) and often there will be clear evidence shown throughout the other aspects of the recruitment process and on the disclosure certificate itself.

Changed circumstances

You should take into account whether the applicant’s circumstances have changed since the offending took place. For instance, those convicted when young, perhaps as juveniles, often do not reoffend once they have family or mortgage responsibilities, because they have too much to lose by getting into trouble. As previously mentioned, many offenders, even those with long and serious records, can eventually change, as they simply grow out of a period of offending or seek help to address related problems.

As part of the risk assessment process you should try to establish the applicant’s attitude at the time of the offence. What is their attitude now? How do they now feel about what happened? How do they feel about their part in what happened? Do they show remorse? Do they blame others? Do they feel a victim of injustice? How genuine is their expression? What efforts have they made not to reoffend? If they have one, can a reference be sought from their probation officer or support worker?

Having reviewed the circumstances at the time of the offence, you should then compare the applicant’s circumstances at the time of them applying for the role. It may be that the applicant can provide the necessary reassurance that past issues have been resolved. However, many people with more recent convictions will also have reached the point where they want to put their offending behind them and put their talents to constructive use. If the offence is not work-related, or if the post is at a level of responsibility which means that the applicant does not pose a risk, you might consider recruiting them if in all other respects they are suitable for the job.

How should I carry out a risk assessment?

Before you carry out your risk assessment, it is important that you have gathered as much information as possible to inform your assessment. Sources may include (but are not limited to) answers given during application and interview, self-declarations, disclosure certificates, disclosure statements, value-based interviewing, references and independent statements from support workers.

You should also give the applicant the opportunity to address any concerns that you may have or discrepancies. This is best done in the form of a face-to-face meeting with the applicant. It is important that you make it clear to the applicant that the purpose of the meeting is to discuss any relevant information that can inform your risk assessment. Making your reasons clear is more likely to instill confidence in the applicant that their disclosure will not necessarily count against them and will encourage them to be more open with you. Try to conduct any such meeting with sensitivity and empathy, as discussing past convictions may be a great source of anxiety and embarrassment for the person concerned.

Think carefully about the questions you plan to ask and keep the discussion focused on the individual and their feelings and attitudes. It is best not to conduct the meeting alone; if possible, invite a colleague who was involved in the recruitment process to provide support and take notes. It is also important to remember it is not your responsibility to decide whether the court’s decision or police course of action was the right or fair one. The purpose of the interview is to help you to gather the necessary information to assess whether the individual may pose a risk in the position applied for.

Once you have gathered all the relevant information, you should carry out your risk assessment and ensure that, where any risks are identified, you assess whether any appropriate safeguards can be put in place to minimise these risks. The assessment should be a documented decision-making process that is signed by those who have undertaken the assessment. If the applicant is successful in post, the risk assessment should be securely stored on their personnel file and reviewed as appropriate.

Are there examples of criminal record risk assessment forms available?

Yes. Nacro’s Resettlement Advice Service has template risk assessment forms that can be adapted to suit the needs of your organisation. Please contact Nacro’s Employer Advice Service on 0845 600 3194 or employeradvice@nacro.org.uk.

Do I have a duty to inform others in my organisation about an employee’s criminal record?

Your duty is to ensure that you assess and manage any risks identified in your risk assessment processes. Information about an applicant’s criminal record should not be disclosed to anyone in the organisation apart from those who have a genuine need to know. This may include people directly responsible for the decision about recruitment or the applicant’s line manager, but only if the offence is relevant to the applicant’s role and only where the line manager, for example, may be responsible for implementing any safeguards deemed necessary and appropriate to manage any identified risks.

The applicant should also be told who in the organisation knows about their record, as they need to feel confident that their personal and sensitive information will not be disclosed to anyone unless there is a specific reason for doing so.

I would like some advice about our organisation’s policy on recruiting ex-offenders/carrying out DBS checks. Who can help?

Nacro works with employers across the private, public and voluntary sectors offering expert training, consultancy and advice on all issues relating to the disclosure and management of criminal record information, safer recruitment and the retention of staff and volunteers. We are happy to review your existing policies and procedures and offer recommendations or to support you with drafting new policies that will ensure you have effective risk assessment and management systems in place, and that you are striking a balance between safeguarding and enabling ex-offenders to have equal access to paid and voluntary employment opportunities.

For further information, support or training on safe recruitment contact Nacro’s Employer Advice Service on 0845 600 3194 or employeradvice@nacro.org.uk. For our events and training courses on safe recruitment, click here.

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ovalball
Posts: 13395
Joined: Tue Jan 31, 2012 11:05 am

Re: Interesting Dilemma

Post by ovalball »

Yeah - I've read all that stuff re employing people in an organisation. Still not concerned from a legal viewpoint. Worst case - no one else knows that I have the information - and it's not something that I'd be expected to know.
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