Aim of this guidance
This guidance sets out a simple step-by-step checklist when dealing with criminal records as part of your recruitment process. It follows the principles of fair chance recruitment and is designed to be used for specific vacancies.
It’s part of our practical guidance on developing your approach to applicants with criminal records.
Why this matters
- It’s easy to overlook – Employers sometimes take their approach to criminal records for granted as a standard procedural element to their recruitment, and very often the specific approach taken for a particular vacancy isn’t always considered.
- It might change depending on the role – Many employers have a range of job roles meaning different approaches might be needed depending on the role
- There are legal and regulatory obligations – The GDPR means employers must identify a lawful basis and condition of processing before asking about criminal records. If you want to carry out criminal record checks via the DBS you’ll need to have a policy on recruiting people with criminal records.
1. Do we need to ask?
- Determine whether criminal records disclose is necessary – what is the purpose of collecting this information? This will be important in demonstrating compliance with your legal and data protection obligations.
- If you plan to carry out a criminal records check via the DBS, what level is the job eligible for?
2. What’s our policy?
- A clear, accessible policy that explains your approach to applicants with a criminal record is a legal requirement as well as helpful guide for recruiters.
- You policy should explain the purpose of asking about criminal record, the lawful basis and condition of processing and how you will assess the information disclosed. It should explain any circumstances where you wouldn’t employ somebody with a criminal record.
1. Are the vacancy details clear?
Let applicants know whether you ask about criminal records and, if so, what you ask and when. if the role involves a criminal record check, explain whether that’s a basic, standard, enhanced or enhanced with barred list check. If you have decided to ask for a self-disclosure, let applicants know when this will be requested.
If the role involves regulated activity, include a statement that makes it clear which group (children, adults or both) the regulated activity is with, and explain that it’s an offence for someone barred from that group to apply for the role.
2. Can we provide confidential advice to applicants?
Applicants with criminal records will usually be familiar with recruitment practices around asking. They may have specific questions around how an assessment is made or the level of check being requested. It can be difficult for them to ask this without identifying themselves as a person with a criminal record. Think about how you could provide advice to these applicants in confidence, so they are not put off applying.
Interview and shortlist as normal
- With a clear policy (see above), you can interview and shortlist purely on the merits of each individual.
4. After offer
1. How will we collect information?
- You may decide to ask for self-disclosure from those you wish to offer a position to.
- You may request a criminal record check at this stage. The applicant can then provide the certificate to you on receipt.
- Be sure to ask for the right level of information. Make sure it’s clear what level of criminal record check will be undertaken for the role, and make it simple for applicants to answer questions about criminal records.
2. How will we consider any information disclosed?
- This is where you make an assessment of their criminal record.
- The information may be old, minor or irrelevant so further assessment may not be necessary
- If you have concerns, gather more information from the applicant and make an informed decision.
3. How will we document our decision?
- Think about how you will document your decision and any adjustments put in place if manageable risks have been identified
- If you make the decision to appoint, keep relevant notes on file but separately from other personnel information
- If the person is not appointed, be as clear as you can about why. Make them aware of your policy in data retention and ensure you delete information that is no longer needed.
- There is more information about our principles of fair chance recruitment
- There is more information about approaching criminal records, which forms part of the practical guidance section of Recruit!
- For further advice about this guidance, please contact us.
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