Introduction to the principles

The principles are broad guidelines on recruiting people with convictions and dealing with criminal records fairly. They are part of our Fair Chance Recruitment work.

To have integrity and purpose, we need principles to underpin, guide and test the pragmatic, and often contingent, approach taken by organisations towards the recruitment of people with criminal records.

The principles have been developed in consultation with a range of stakeholders including employers, recruitment professionals and data protection experts, and people with a criminal record. They are designed to be used as a benchmark for employers in ensuring the fair treatment of people with criminal records.

We are working to help employers put these principles into practice by developing this website into a resource centre for employers and recruitment professionals, and working closely with a small number of larger employers. As part of this work, we will be looking to add more detail to each of the principles. If you’re interested in receiving updates about this work, sign up to our mailing list.

You can find out more about Fair Chance Recruitment.


Principle 1 – Consider whether you need or want to ask

In most cases, there is no legal obligation on you to ask about criminal records. Asking about criminal records means you’re processing sensitive personal data and therefore have legal obligations under the Data Protection Act 1998. So, if you currently ask about criminal records, ask “why do we do this?” Being clear about your purpose will help you to assess whether your process achieves it or not. If you decide you don’t need to ask, and if you don’t want to, then there’s no need to read any further.

Many employers choose not to ask about criminal records because they do not believe it adds value to their recruitment process. Instead, they have measures in place to properly manage and oversee their employees, recognising the major shortfalls that relying on criminal records has in terms of reducing risk in the workplace. For example, only those convicted will have a criminal record. The majority of offenders are never caught.


Principle 2 – Have a clear, accessible policy that you review

Have an ‘Applicants with a criminal record’ policy linked to all your vacancies. This policy should set out how you deal with applicants who have a criminal record. It should make it clear whether you will ask about criminal records and, if so, when this will happen. It should state which roles are eligible for a criminal record check and, for each role, which level of check will be conducted (e.g. basic, standard or enhanced). It should provide useful links to advice to help applicants answer the questions you ask, and explain your approach to those who disclose.

Set up processes that enable you to monitor and review the impact of your recruitment of people who have a criminal record. For example, periodically review past internal decisions without attaching this to personal files. Keep data that enables you to understand the number and type of people with convictions whom you recruit.

If you are carrying our checks through the Disclosure and Barring Service (DBS), you must have a policy in place. Many employers have a policy, but it is often a standard ‘template’ that is outdated, doesn’t properly reflect their process, neither is it easily available at the point when an individual is deciding whether to apply. It could sit as part of your Equal Opportunities Policy.

It is important to keep your policy and processes under review. For example, by looking at the judgements that different decision-makers have made within your organisation, you will be able to improve your fairness and consistency when dealing with applicants who have criminal records.


Principle 3 – Ban the box: Defer questions until after a conditional job offer

Many employers believe they have a right to know about their employees’ criminal records, but applicants are not yet employees. If you are going to ask about criminal records, make sure you remove the ‘tick box’ from your application form. You could instead ask at a later stage in the recruitment process – after a conditional job offer.

Many employers have ‘banned the box‘ – that is, removed the question about criminal records from the job application form, deferring the question until later in the application process. This allows the applicant to be considered on their merits without prejudice. If the role is classed as regulated activity, you could still ask the applicant to confirm that they are not barred from working with the relevant vulnerable group.


Principle 4 – Be clear in any questions you ask

Being clear to applicants is important in complying with legislation (see below). In any questions that you ask, be clear what you want your applicant to disclose and don’t ask complex legal questions. This will help to avoid confusion.

For most jobs, it should be made clear that applicants do not need to disclose convictions that are ‘spent’ under the Rehabilitation of Offenders Act 1974.


Principle 5 – Follow rehabilitation & data protection legislation

For most jobs, you are not allowed to consider convictions that are ‘spent’ under the Rehabilitation of Offenders Act 1974 (ROA). In addition, you would be acting unfairly and unlawfully if you were to carry out a criminal record check at a level inappropriate to the role.

Section 56 of the Data Protection Act makes it a criminal offence to require an individual to provide a copy of subject access record (often obtained from the police directly). Instead, employers should use official criminal record checks through Disclosure Scotland or the Disclosure & Barring Service, depending on the exact nature and responsibilities of role. Employers that carry out a criminal record check at a level that the role is not eligible for could be committing a criminal offence under the Police Act 1997.


Principle 6 – Be proportionate

Disclosure laws often mean that people can still be legally required to disclose old and/or minor convictions. To ensure that you comply with data protection legislation and do not consider historical information that is no longer relevant to the role, do not ask about or consider convictions or cautions that were given more than 7 years ago (or, if the person was in prison, 7 years after release). Within the last 7 years, think about what types of offences are relevant to the role on offer. Are there certain convictions which you don’t think are relevant and so don’t need to be disclosed?

The best research available shows that criminal convictions which are more than 7 years old (since conviction or release) are not predictive of a person’s likelihood of committing a further offence. The relevance of a conviction within this time period will depend on the job, the criminal record and the individual, all factored into an individual assessment.


Principle 7 – Be fair and consider criminal records in context and face-to-face

Written information, whether official or provided by an individual, can be difficult to put into context. Sexual offence convictions, for example, cover a broad range of categories, including young couples that have a consensual sexual relationship. Legally, there are very few situations where you would be unable to employ somebody due to their criminal record.

If you think you might have to refuse an individual because of their criminal record, give them an opportunity to explain the surrounding circumstances in person to address any concerns you might have. Don’t limit a discussion about their criminal record just to the behaviour that led to their offence. Instead, focus most on what the applicant has done since; encourage them to discuss their rehabilitation and the positive steps they’ve subsequently taken.

Look at overcoming the barrier that can sometimes exist; proactively visit prisons and probation services to meet people and get a better understanding – this should help break down any myths or stereotypes that you might have about people with criminal records.

Your policy should inform your decision making; avoid blanket bans; treat any information disclosed to you as confidential and only share it with specific colleagues if necessary. Written information, whether official or provided by an individual, is difficult to put into context. Where you have concerns about an applicants’ criminal record, arrange a face-to-face discussion.

Visiting a prison or probation service is one of the most effective ways of breaking down the barrier between ‘us’ and ‘them’. People with convictions are not simply the sum of their criminal record – it isn’t what defines them. Proactively seeing this for yourself can help you realise that they, like everyone else, deserve a fair chance at finding a job.


Principle 8 – Be confident in your process and practice

Make sure that those involved in recruitment are knowledgeable and confident in dealing with criminal records. Consider specific training for those regularly involved in talking to applicants about their criminal record and making judgements based on information disclosed.

It is important that staff with key recruitment and decision-making responsibilities feel confident in the judgements they’re making. Research shows that what individuals go on to do after their last conviction is a good indicator of their likelihood to stay out of trouble in the future.


Principle 9 – Be understanding of discrepancies

Criminal records are complex. Many applicants are confused about what their criminal record is and what they are required to disclose. Experience shows that while people with criminal records may be able to honestly and accurately explain the behaviour that led to their arrest, they can often be confused about exactly what happened next, and especially what was recorded officially, and so don’t always disclose this information accurately.

Don’t assume that any discrepancies between what the applicant discloses and what a criminal record check states, means the applicant is lying.

So, if you’re using a criminal record check, consider not asking applicants to self-disclose. Instead, wait for a formal criminal record disclosure to be returned and use this as a source for any discussions about the applicant’s criminal record.

The criminal record disclosure system is incredibly complex and hard to understand, both for employers and applicant. Waiting for a formal disclosure avoids the problem of an applicant unintentionally providing the wrong information when asked to self-disclose (either by under-disclosing information through ignorance of the official record, or over-disclosing information which an employer is not entitled to know and legally needs to discard). This process is used by many organisations that regularly undertake enhanced criminal record checks. The process should be made clear in a policy that is made available to individuals at application stage. If there are concerns when the official disclosure is returned, they can be discussed face-to-face.


Principle 10 – Document your decision-making

Keep a record of the process you go through and the considerations you give. This enables you to explain your decision-making and make confident recruitment decisions.

Employers sometimes worry about being held liable if things go wrong in the future. Even though this rarely happens in connection to an applicant’s criminal record, having a documented decision-making process will give you confidence in the decisions that you make.

 

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