Blanket exclusions for certain offences

We’ve recently worked on a case where an employer had a blanket exclusion for certain offences.

We were contacted by an individual who had applied to a training organisation which specialised in working with people with convictions with the aim of getting them into paid employment. The majority of individuals they work with are either still in prison or have been recently released from prison.

The organisation used a referral form which asked the following question:

“Are you free from any convictions for sex offences or arson?”

The question seemed quite vague and, as there was no mention of the Rehabilitation of Offenders Act, the individual didn’t know what should be disclosed – should it be only unspent convictions, or spent convictions as well? Also, as there was no mention of whether any formal criminal record checks would be undertaken, he was unable to use that as a way of determining what to disclose.

We contacted the organisation to highlight our concerns about the current wording on the referral form, namely that:

  1. It did not make any reference to the Rehabilitation of Offenders Act which could lead to an applicant disclosing a spent conviction in error. If this were then taken into consideration by the organisation it may be seen as a breach of the Data Protection Act and possibly lead to legal action being taken against them.
  2. The blanket nature of the statement didn’t take into account individual circumstances.

We provided the organisation with a link to this website for employers and, in particular the guidance section asking about criminal records. We suggested that a more appropriate question to ask would be:

“Do you have any offences which are currently unspent under the Rehabilitation of Offenders Act? (You do not need to disclose anything that is deemed spent).”

The organisation got back in touch with us to confirm that the companies they worked with are in the construction business and had ‘issues’ around these two specific types of offences. The question therefore was something that they had wanted included in the referral form.

We explained that due to the nature of the client group, the majority of individuals they dealt with would have unspent convictions which they would need to disclose if asked. This meant that companies would be able to risk assess somebody on the basis of their unspent conviction.  Legally, however, an applicant would not need to disclose spent convictions irrespective of the type of offence they had been convicted of and this should be made clear on any referral form.

The organisation considered the information we provided them with and have now removed the question which relates to specific offences.

Lessons

This case showed how some sectors of the business community viewed certain types of offences and how organisations such as this one can find themselves trying to satisfy their clients concerns yet making mistakes in the process.

Links

Notes about this case study

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Christopher Stacey