Confusing questions about criminal record checks

We’ve recently worked on a case where the employer had a confusing question about criminal records.

We were contacted by an individual who had just received notification from a local school that his application for a teaching position had not been successful. The individual explained that he hadn’t been surprised by the decision as the school appeared to be very focused on his criminal record rather than his skills and experience in the workplace. He told us that the second question on the application form after stating your name was the ‘Compulsory declaration of any convictions, cautions or reprimands, warnings or bind overs’.

However, of more concern to this individual was the wording given in the question. It stated:-

‘Jobs in schools/academies are exempt from the provisions of Section 4(2) of the Rehabilitation of Offenders Act 1974. You must therefore declare, whether spent or not, any convictions, cautions or reprimands, warnings or bind-overs which you have ever had and give details of the offences. The fact that you have a criminal record will not necessarily debar you for consideration for this appointment’ (emphasis added)

The question gave no mention of ‘protected’ cautions or convictions nor any guidance around filtering legislation. We felt that applicants without an understanding of the filtering legislation could potentially over-disclose and risk their application being rejected.

We contacted the school pointing out that it’s important that they are clear about what does and doesn’t need to be disclosed.

We explained how many employers had banned the box – that is, removed the question about criminal records from the job application form and deferred the question until later in the application process. The advantage of this approach would be to allow the school to consider applicants on their merits first.

In addition, at whatever stage the school chooses to ask about criminal records, their question should reflect the new ‘filtering’ legislation if the role is one that is exempt from the Rehabilitation of Offenders Act 1974. We provided the school with the following recommendation for their wording:

‘Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?’

The Principal of the school contacted us to explain that they had chosen their current application style in line with Department of Education guidance. It turns out this wasn’t the case. They believed the questions they asked provided them with the information they needed and ensured fairness and consistency, but now recognised this wasn’t the case.

They took on board the information we had provided to them and felt that we had raised some interesting points. At a recent meeting the school had agreed to:-

  1. Amend their question
  2. Provide guidance to applicants on roles which are exempt from the Rehabilitation of Offenders Act.
  3. Publish information on their website around filtering legislation and link to this in their application process.

Lessons

This case showed how organisations believe they are dealing with criminal records in the right way, but have not kept up with changes to the disclosure regime.

Links

Notes about this case study

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Christopher Stacey