Practical guidance – Assessing criminal records – Carrying out a criminal record assessment

Aim of this guidance

This guidance is aimed at supporting employers in assessing the criminal records of applicants. It outlines the steps that you should take when assessing a criminal record that an applicant has disclosed.

It’s based on a recruitment process where an applicant has disclosed via a criminal record self-disclosure form completed after a conditional offer of employment for a particular role, in line with our principles of fair chance recruitment.

This guidance should be useful both in establishing a policy on how you will approach assessing the criminal record of applicants, as well as providing practical guidance when dealing with individual cases.

The ultimate aim is to reduce the unnecessary refusal of applicants due to their criminal record because, once they’re better understood by you as the employer, you’re often able to make a confident and positive decision that the individual can still be employed in the role that they’ve applied for.

Why is this important?

There is a lot of confusion about criminal records. Confusion can create anxiety. Anxiety can lead to risk-averseness.

Often, it’s easy to make assumptions about what was involved. Consider these examples:

This is a very broad category. It includes offences such as sexual assault and rape. It can also include urinating in the street on a night out, and a 17 year old sleeping with their 15 year old partner.
Often, people assume this offence would make somebody unsuitable from working with children. However, consider this situation. A couple are having an argument, and one of them threatens to leave and go back to their family in Italy. The other sides’ sister keeps her niece for longer than agreed to try and get the couple of sort out their differences. She is ultimately convicted of child abduction.
Immediately, people think drugs are involved in this offence. In fact, it’s the complete opposite. This offence title shows how offence terms can be misleading. This could relate to a 17-year old who uses a fake driving licence to buy alcohol.
Often, people assume this involves breaking in to somebody’s home. Instead, this could relate to a homeless person who goes into an empty warehouse and lights a fire to keep warm.

However, when you have a clear process in place for assessing criminal records, you are better able to understand specific situations and make confident recruitment decisions as a result.

Two main factors to consider when recruiting to a particular role

When recruiting to a particular role, there are two combined factors to consider when looking at an applicant’s criminal record:

  1. The particular role. This includes considering the responsibilities and circumstances of the work. This can, to some extent, be done in advance of recruitment (and is covered in separate guidance). However, it’s also a relevant consideration depending on the person’s criminal record.
  2. The details of the criminal record disclosed by the applicant. This is best considered by having a face-to-face discussion with the applicant.

These two combined factors overlap at various different points in the guidance that is set out below.

When to assess

An assessment of an applicant’s skills, qualifications and experience should take place first.

An applicant’s criminal record should be assessed separately, once you’ve decided you wish to offer the applicant a conditional offer of employment. This can happen after you’ve provided the applicant with a criminal record self-disclosure form. Why is it important it happens after conditional offer?

If you are conducting criminal record checks as part of your recruitment process, you need to decide whether to wait until the disclosure certificate comes back before conducting an assessment of what they’ve disclosed. To decide what process works best for you, you should consider that:

  • Not all employers carry out criminal record checks.
  • Criminal record checks should only be used to confirm what information the applicant has already disclosed.
  • Criminal record checks cost money, can sometimes take quite a while and can cause delays.
  • Having carried out a criminal record assessment, you may feel confident in enabling the applicant to start in their role, subject to certain conditions.
  • Sometimes applicants can be uncertain about their official criminal record and so may unintentionally disclose on a self-disclosure form something they didn’t need to (and that you legally shouldn’t consider), or not disclose something that you’ve asked them to disclose.

Our general approach is that, to ensure you give proper consideration to the relevance of an applicant’s criminal record in a timely way, you should conduct an assessment as soon as possible after you’ve identified the successful applicant.  There’s no reason why an assessment cannot be carried out before a formal check, so long as you cross-reference the results of the check (once it’s available) with what has been considered during the recruitment process.

Carrying out a criminal record assessment

If the shortlisted applicant discloses a criminal record on the self-disclosure form, you should carry out a criminal record assessment.

The assessment is made up of two main parts:

  1. An initial assessment – this comes after the applicant has completed a self-disclosure form.
  2. A face-to-face meeting – referred to here as a ‘disclosure discussion‘. If necessary, and particularly for more substantial disclosures where there are concerns, a face-to-face discussion should be conducted to discuss the relevance of their criminal record.

Step 1 – Initial assessment

Where an applicant discloses a criminal record on a criminal record self-disclosure form, you should consider what they’ve disclosed and make an informed decision relating to their criminal record before confirming their offer of employment.

An initial assessment means coming to a decision based on the information disclosed through the self-disclosure form.

  • This can often be done for old, minor or clearly irrelevant information, where the decision could be to appoint with no further assessment.
  • It’s also an opportunity to make sure that you’re only taking into account information you’re legally entitled to. For example, if the role is covered by the Rehabilitation of Offenders Act 1974, you should discard any spent convictions. If the role involves a standard or enhanced DBS, you should discard anything that would be filtered.

The decision at this point is whether a disclosure discussion is necessary or not. A decision to reject at this stage is not advisable, unless there are clear legal issues that are insurmountable, such as the person being legally barred from the role.

Step 2 – Disclosure discussion

In some situations, a disclosure discussion might be needed. There are some key points about how to approach this.

  • It can be incredibly difficult for an applicant to show themselves in the best possible light to a prospective employer when having to discuss past matters that they may feel ashamed or embarrassed about.
  • This discussion needs to be clear in its purpose; it is to support you in making an informed decision as an employer. Explaining this to the applicant should help to instil confidence and openness.
  • The approach of the discussion should be explained in advance, and carried out sensitively.
  • Think beforehand about the questions you’ll ask.
  • Consider carrying out the discussion alongside a colleague, so that one can take notes and provide support, although consider whether this may risk over-formalising the discussion.
  • Be clear that it’s not your role to determine whether the person is guilty or innocent.
  • It’s a good idea to note what is said, and keep this stored securely on the applicant’s file, in order to avoid disputes further down the line.

We have a template criminal record assessment with questions that you can adapt to your particular needs.

What should I ask / What can I ask?

If you’ve used a self-disclosure form, the ‘disclosure discussion’ is your opportunity to find out more about the circumstances that led to what was disclosed on the form.

To do this, you should develop a set of tailored questions. Some of these may be straight-forward (we have a sample set of questions in the criminal record assessment template below) but you should treat each applicant individually. You should focus on asking specific questions that are based on the particular concerns that you have given the role they have applied for.

Before the meeting, you should consider the information the applicant has disclosed, and the role they’ve applied for, and think about what questions might be relevant.

  1. When did the offence occur?
  2. At what age was the offence committed?
  3. Was the offence a single occurrence?
  4. If multiple offences, were they part of a pattern of offending behaviour?
  5. Were there circumstances surrounding the offence? If so, what were they?
  6. What was their attitude to the offence?
  7. Have the applicants’ circumstances changed since the offence(s)? If so, how?
  8. Is the applicant taking part in any relevant programmes?
  9. Is the applicant barred from working in regulated activity (if applicable) with children and/or adults?
  10. Are there any sentence restrictions or requirements relevant to the role? (e.g. community order, licence, sexual offences register, restraining order, barred from working with certain groups)
  1. Building on the question above about circumstances, you might ask if the individual had issues at the time, such as bereavement, depression, alcohol/drug issues, financial difficulties). If so, what’s different now? Are any of those circumstances still present?
  2. What positive steps have they taken to address their offending and their motivations behind offending?
  3. Is there anybody supporting them in dealing with their convictions and/or trying to find work? Would the applicant be happy for them to be contacted?

How to assess what’s been disclosed

You should base your assessment on actual concerns that are relevant to the role.  There are:

  1. Factors to consider for a particular role
  2. Factors to consider in assessing a criminal record
These areas are covered in more detail in separate guidance

Coming to a decision

Before you come to a decision, it is important that you have gathered as much information as possible. Sources might include (but are not limited to):

  • information provided on the self-disclosure form
  • answers given during the disclosure discussion
  • additional written information provided by the applicant
  • references and independent statements from support workers.

If you have identified any concerns or discrepancies at this stage, you should give the applicant the opportunity to address these.

Making a decision

You can make a decision after you have held a disclosure discussion (if this was necessary) and had an opportunity to properly consider all relevant factors.

  • The decision should be reaching used a common-sense approach – the template should help with this.
  • The decision can be based on a combination of the contents of the self-disclosure form and disclosure discussion.
  • The assessment should involve a documented decision-making process that is signed by those who have undertaken the assessment.
  • You may decide to offer the applicant the position. This may include safeguards that you believe can be put in place to minimise any identified concerns.
  • If you’re carrying out an official criminal record check, you may want to wait until that is returned before making a final decision.
  • Make sure that the necessary approval has been sought internally (e.g. someone in your HR department) before informing the applicant of your decision.
  • A formal record of the decision, with clear reasons, should be kept securely. If successful, the assessment should be stored on their personnel file and reviewed as and when appropriate.

Understanding formal criminal record checks

Criminal record information that is disclosed on formal checks can be very limited. Where a caution or conviction is disclosed, you will usually only be given details of the date of caution or conviction, the offence category and the sentence or disposal. Trying to interpret this information requires understanding of the criminal justice system and related terminology, which can often be a problem for employers.

Sometimes, depending on the situation of the applicant, the Probation Service or the Job Centre may also be able to give advice, as well as any other organisations the individual might be receiving support from.

However, interpreting and understanding in this way can only go so far. To properly understand the underlying circumstances, it is normally best to simply ask the applicant to explain. During any assessment, the questions you should ask will enable you to understand the behaviour that led to a criminal record. Each case is different, and they will be in the best position to explain the circumstances. They may also be able to provide further information or documentation that helps to reinforce what they’re saying.

Remember – a criminal record certificate should normally only be used to confirm what an individual has already disclosed to you.

A criminal record check is a formal document which reveals information from the Police National Computer – the date of conviction/caution, the technical offence category and the disposal. There is no subjective information disclosed in the conviction/caution section.

If you have concerns about the information that has been disclosed on an official certificate, or if it is not as you expected, you should discuss your concerns with the applicant/employee and carry out an assessment (where necessary).

If there is a serious public protection issue involving the applicant, the police can disclose additional information to employers:

  1. Through an enhanced DBS check application, the police have an opportunity to disclose any other information that they deem relevant to the role applied for.
  2. Under their general disclosure powers, the police may disclose relevant information to employers. This may be if the applicant is under a multi-agency public protection arrangement (MAPPA) or subject to any civil orders made as a result of a sexual offence.

Frequently asked questions

This section will be added to over time, responding to the common questions we receive about this guidance.

First, you should establish whether the role is classed as ‘regulated activity’. If it is, then you have a legal obligation to carry out a ‘Childrens Barred List check. This will tell you whether the individual is barred from working with children and/or vulnerable adults. If they are, then you cannot legally employ them. However, it’s important to realise that, compared with the number of people with convictions, the number of people barred from working with each group is relatively small (approximately 50,000).

If an applicant is not barred from working with the children, then it is up to you to decide on their suitability for the role. You shouldn’t refuse an individual simply on the basis that they have a criminal record. If their criminal record doesn’t indicate that they would be unsuitable, you should continue to recruit them. The guidance on this page should help you to assess their criminal record.

If an applicant has an old copy of a criminal record check, for example a basic or enhanced disclosure, it can be helpful for them to provide this to you so that they can accurately explain their criminal record. However, there are number of potential problems. In particular, two legal problems arise.

First, it’s important to make sure the right type of check is seen. For example, an applicant shouldn’t be asked to show an enhanced check for a role only eligible for a basic check; that’s because you might have sight of more information that what you’re allowed to take into account.

Second, because it’s an old check, it’s not up to date. While this is usually interpreted as meaning there could have been something else that has happened since, it could also mean that a certain caution or conviction that appears on their old check would no longer appear on one if they did it now. In this type of situation, you could end breaking the law by basing your decision on information you’re not allowed to use.

You will notice that we don’t use the phrase ‘risk assessment’. Although in some senses what you might be trying to do is ‘assess risk’, we believe that the purpose of understanding and assessing an applicants criminal record is broader than that, and to focus very narrowly on ‘risk’ too readily accepts that a past criminal record is a strong indicator of future risk – which is why, instead, we focus on ‘assessing’ and ‘understanding’, then ‘addressing concerns’.
Ideally, yes. That’s because you should attach quite a bit of importance on how the applicant comes across – do you feel that they are being genuine and remorseful, for example? This is much better assessed in a face-to-face situation. Ultimately, that might not always be practicable. If that’s the case, a specific conversation some other way is a must. Ultimately, it’s important to discuss the concerns that you have, and not simply rely on what the applicant has disclosed in writing as a reason to no longer offer them the role.

Useful resources

We have produced a criminal record assessment template that you might choose to use and/or adapt to your organisation.

This template is designed to be completely internally and is particularly useful for employers that currently take a risk-averse approach to recruiting people with criminal records. It is ideal for employers that might otherwise reject an applicant based on what the applicant has disclosed in writing.

Download: Criminal record assessment template

initialassessment

Contact us for an editable version of the template.

As with the rest of this site, this template is in ‘beta’ – which means we’re keen for feedback so that we can edit and improve it. We are also working on guidance which will provide more details on using the template.

Other resources

There is a useful template within the Our Decision resource (which involves Children England, NCVYS, DBS and Safe Network) – at the back, there is a resource titled “Managing a Positive DBS Disclosure: risk assessment checklist”

Nacro have published a risk assessment template in their Recruiting safely and fairly guide.

More information

  1. There is more information about assessing criminal records here.
  2. For further advice about this guidance, please contact us.

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This guidance was last updated in February 2016

Is there anything wrong with this guidance? Let us know – email recruit@unlock.org.uk