The National Staff Dismissal Register

The National Staff Dismissal Register for retail employers is expected to be introduced soon. It has some high profile supporters, including Harrods, Selfridges and Mothercare.

It is a commercial initiative established by the Action Against Business Crime (AABC) Group, a partnership between the Home Offi ce and the British Retail Consortium, who state:

"Investigation of dishonesty is time-consuming and costly and will be of limited deterrence if future employers are unable to properly identify potentially dishonest staff to ensure that they are not able to obtain employment by evading internal vetting processes."

The Register will hold data on employees dismissed for 'dishonesty' reasons and on employees who resign part-way through a disciplinary process or investigation based on the following reasons:

• Theft or attempted theft of money or property from the employer, its suppliers, staff or customers.
• Falsifi cation or forgery of documents.
• Fraudulent acts resulting in obtaining or intending to obtain money, assets, services or information which would otherwise be denied to that employee.
• Causing a loss to the company or another party, such as a supplier.
• Causing damage to company property.

The employers who sign up to the scheme will have access to this information and are likely to use it in their selection process for potential employees.

Risk to Employees

 There is a substantial risk that job applicants could be 'blacklisted' from companies which have access to the Register.

To date, there is no regulatory body which will monitor the listings. Since individuals can be included on the Register without a hearing, a trial or criminal conviction, there is a risk that it could be open to abuse by employers.    

Although AABC refer to an employee's inclusion due to allegations of 'dishonesty', there do not appear to be any clear boundaries. It seems that an employee can be added to the Register if they have caused loss to the employer or a third party. It is not clear whether this act needs to be dishonest or whether a mere mistake causing loss could lead to an employee being included.    

Also, it is not clear what information will be recorded against an employee about the 'dishonest act' itself. Some acts are more serious than others, but it is not clear whether there will be a description of the allegations and the fi ndings made.    

The real problem with the Register is the range of access which potential employers will have to the information contained in it. It is far more wide-reaching than a reference that has been specifi cally requested by a potential employer. It is not clear who will have authority to include information on the Register.    

Employees may be unaware that they are included on the Register, which raises serious data protection issues. The details on the Register will include name, address, NI number, previous employers and may even include photographs. With so much information in the hands of a commercial organisation, it raises concerns over potential identity fraud.

Risk to Employers

There are many reasons for employees to be concerned about the Register, but it also carries risks for employers.

If an employee believes they have been dismissed and put on the Register for a discriminatory reason, such as sex, race, disability, and a prospective employer decides not to employ that individual, it is possible that the ex-employer and the prospective employer could both face discrimination claims with awards of unlimited compensation.

If an employee feels that his or her reputation has been damaged by an untrue or unfair inclusion on the Register, they may pursue a defamation claim for damages and legal costs against the employer and anyone else who publishes the defamatory allegation. This creates a risk of damage being caused to the reputation of the employer.

Under the Rehabilitation of Offenders Act 1974, 'spent' convictions can be ignored. A spent conviction should not, therefore, be used as grounds for dismissal or for not employing a person. Although a dismissal is not a 'conviction', similar rules should apply to employment matters. It is not clear whether the Register will be kept up to date, by whom and for how long entries will be kept and, therefore, accessible to potential employers.   

Normally, an organisation must satisfy one of the conditions in the Data Protection Act in order to process sensitive personal information lawfully. Sensitive personal data includes information about the committing, or alleged committing, of an offence by an individual.   

As the law stands, and without more information on how the Register will work, it is diffi cult to see how the disclosure of this type of information is legal.

It seems that a proposed amendment to the Data Protection Act will enable an employer to argue that, since its purpose is to prevent fraud, the processing of personal information and its disclosure to other companies, is necessary.   

The potential opportunities to abuse the new scheme are endless. Employers who have already signed up, and those who are tempted to do so, should consider the potential consequences. At the moment, details of this scheme are imprecise and raise more concerns and questions than answers.