- Aim of this guidance
- Why this is important
- The need for a specific policy
- What makes a good policy
- Complying with the DBS code of practice
- Examples of good practice
- Examples of bad practice
- Frequently asked questions
- Help with updating your policy
- Useful resources
- More information
- Has this been useful?
Aim of this guidance
This guidance is for employers that have a recruitment process which involves asking about criminal records at some point. It’s designed to help you to establish a clear, accessible external policy that explains your approach towards applicants with a criminal record.
The guidance covers why you should have a policy. It also provides details of the areas you should cover in a policy. It’s part of our practical guidance on developing your approach towards criminal records.
Crucially, this guidance doesn’t include a template policy. Although there’s guidance about the areas to cover, and we provide suggestions for how you might go about each area, it’s important that you look at this from the perspective of your organisation, thinking about your values and the processes that you have in place. Only then can you write a policy that reflects these. It may be that you’re looking to change your processes as part of developing your policy, and this guidance should help you in looking at what a good policy might look like.
Why this is important
- Many people don’t apply for positions where details of criminal records are asked for, because of the shame and embarrassment they feel about their pasts, even where their criminal record wouldn’t make them a risk.
- Many others don’t apply for roles because they believe they will be unfairly discriminated against – refused employment on the basis of old and/or wholly irrelevant convictions. There has been deal of discrimination among employers.
- Having a clear, accessible policy is a principle of fair chance recruitment.
- If you’re doing DBS checks as part of your recruitment process, you must have a policy in place for how you deal with applicants with a criminal record.
- Although many employers have some form of policy, it’s often a standard ‘template’ that is outdated and doesn’t properly reflect their process, nor is it easily available
The need for a specific policy
A specific policy that sets out your approach towards applicants with criminal records can:
- Ensure clarity and confidence in your approach, both internally and externally
- Give confidence to applicants that they’ll be treated fairly
- Explain what needs to be disclosed and when
- Reduce the likelihood that applicants disclose too little or too much
- Provide supportive guidance to help applicants understand the process
- Be a requirement, if you do DBS checks
- Explain and promote to your existing employees the approach you take
Equality and diversity is all about treating people fairly. So it’s right to think of your approach towards applicants with a criminal record as part of your broader equal opportunities policy.
Some organisations include their approach to criminal records as part of their equal opportunities. In practice, you can decide to include this within your equal opportunities policy, or it can exist as a standalone policy. Either way, a general statement in your equal opportunities policy can be useful. For example, you could say:
“We are committed to the fair treatment of our staff, potential staff and users of our services, regardless of race, gender, religion, sexual orientation, responsibilities for dependants, age, physical/mental disability or offending background.”
Although ‘having a criminal record’ is not a specifically named ‘protected characteristic’ under the Equality Act 2010, it is important to protect against indirect discrimination against those groups more likely to have a criminal record, such as black and minority ethnic groups.
A specific policy around applicants with criminal records is mainly (but not necessarily exclusively) focused on recruitment. This can overlap with your safeguarding policy.
All organisations that work with or come into contact with children should have safeguarding policies and processes to ensure that every child can be protected from harm. This will normally include a focus on recruitment, induction and supervision, including what checks you carry out on new people who work or volunteer.
We recommend that organisations see their policy on applicants with a criminal record as closely linked (but separate) to their approach on safeguarding. This ensures that your approach to safeguarding doesn’t focus too heavily on formal vetting procedures (such as DBS) checks, and recognises that a safeguarding policy has a different purpose to a policy on applicants with a criminal record.
The NSPCC has a significant amount of helpful guidance on safeguarding and writing safeguarding policies.
The short answer is no.
Too many organisations take ‘templates’ or ‘sample policies’ and use them for their organisation without given them any proper consideration. This misses the point. The values and ethos, as well as practice and processes, are unique to each organisation. The guidance here is designed to support you in developing your own policy that’s tailored to the values and processes that you have.
This guidance is focused on developing an external policy that is focused at potential applicants. You may have further details about your approach, including specific details of those involved, in an additional policy or process that’s for internal use. You may also include a section within your staff handbook that explains that you employ people with criminal records, the benefits this can bring to the organisation, and what they should do if they have any questions or concerns.
What makes a good policy
Instead of providing a template or sample policy, this section covers the areas that a policy should include, and suggests some text that might be appropriate.
A good policy on applicants with a criminal record is…
…clear and accessible
…welcoming and positive
“[Organisation] actively promotes equality of opportunity for all and welcomes applications from a wide range of candidates. [Organisation] recognises the contribution that people with criminal records can make as employees and volunteers and welcome applications from those with a criminal record. We select all candidates for interview based on their skills, qualifications and experience”
…recognises the breadth of criminal records
For example, you could say:
“A criminal record will not normally, in itself, prevent an applicant from being appointed to the post. Suitable applicants will not be refused posts because of offences that are not relevant to the role and which do not raise serious concerns in the role for which they are applying. We will judge each case on its merits and not discriminate unfairly against any applicant on the basis of a conviction or criminal record information disclosed to us.”
…legally correct and recognises rehabilitation laws
For example, there are a couple of phrases that will make sure you don’t misinterpret disclosure legislation:
“We only ask applicants to provide details of convictions and cautions that we are legally entitled to know about”
“For roles where the Rehabilitation of Offenders Act applies, we will ask applicants to disclose any unspent offences. Spent convictions do not need to be disclosed.”
“For roles that are exempt from the Rehabilitation of Offenders Act, we will ask applicants to disclose any convictions and cautions that would not currently by filtered by the DBS.
…explains what, when and why you ask about criminal records
Your policy should explain what questions you ask about criminal records, and when you ask. This ensures that applicants know when they should (and shouldn’t) disclose, helping to reduce the chance that people disclose before or after you want them to. The DBS sample policy suggests asking “at interview, or in a separate discussion”. Adopting this wording exactly will still leave it unclear when you ask, or why. Organisations should have a specific process in place, and this should be noted in your policy.
The GDPR means you must explain the purpose and lawful basis for asking – in essence, why you’re asking. Our guidance for employers can help you identify a purpose and lawful basis.
For example, if you ask those you offer a position to, you could say:
“The successful candidate/s will be asked about relevant criminal records as part of pre-recruitment checks. If a relevant criminal record is disclosed we will ensure and open and fair discussion takes place before making a final offer. Failure to disclose information that is then later revealed on the relevant criminal record check could lead to withdrawal of an offer of employment. After receiving a criminal record certificate, we will discuss any matters revealed that have not been previously addressed, before reconsidering the conditional offer of employment. “
If you’ve signed up to the ‘Ban the Box’ campaign, you could say:
“We support ‘Ban the Box’. To ensure that we shortlist purely on merit, we don’t ask for criminal record details at application stage. What applicants are required to disclose will depend on the role that they are applying for. We will make it clear in the job description what type of role it is, and therefore what will need to be disclosed.”
…explains what checks you’ll do
“For those positions where a criminal record check is identified as necessary, all application forms, job adverts and recruitment briefs will make clear what level of check will be submitted on the individual being offered the position”
…explains the decision-making process
“For any information disclosed, cases will be looked on an individual basis, taking into account details such as;
- Whether it’s information we are legally allowed to consider
- Whether the offence is relevant to the position applied for
- The age at the time of the offence(s)
- The length of time since
- The circumstances surrounding the offence(s), and what has changed since
Any information disclosed will be treated in the strictest confidence. We will consider any information disclosed before confirming an offer of employment. If necessary, we may arrange a face-to-face discussion with the applicant to obtain further details. Failure to disclose relevant information when requested could result in disciplinary proceedings or dismissal.”
You can explain how you understand some of the concerns applicants may have and what steps you take in response. For example, you could say that:
“We take a positive approach to applicants with past criminal records”
“We ensure that all those involved in the recruitment process have received appropriate guidance and training in the legislation and practice of recruiting people with criminal records.”
“We ensure that all those who are involved in making suitability decisions based on an applicants’ criminal record have been trained to do so.”
…uses the right language
…provides an overview of the process and is consistent
…directs people to support
Provide a specific point of contact internally who can answer general questions about your policy. Provide details of external sources of support (such as Unlock’s information site) that can help give advice to people with a criminal record.
For example, you could say:
For positions covered by the Rehabilitation of Offenders Act 1974, we will ask applicants to disclose any unspent convictions. For guidance in answering this question, visit the Unlock information site which has useful information on this legislation.
For positions exempt from the Rehabilitation of Offenders Act 1974, we will ask applicants to disclose any convictions, cautions, reprimands or final warnings that would not be currently filtered by the Disclosure and Barring Service. For guidance in answering this question, visit the Unlock information site which has useful information on filtering.
…is reviewed and kept up to date
…complies with the DBS code of practice
If you do DBS checks as part of your recruitment process, you should comply with the DBS code of practice.
The code of practice (published under section 122 of the Police Act 1997) advises that registered bodies must:
- “Have a written policy on the suitability of ex-offenders for employment in relevant positions” (the DBS has produced the a sample policy statement which can be used or adapted for this purpose, although the problem with sample policies is partly why we have this guidance)
- “Notify all potential applicants of the potential effect of a criminal record history on the recruitment and selection process and any recruitment decision”
- “Discuss the content of the Disclosure with the applicant before withdrawing any offer of employment”
…complies with the GDPR/DPA 18
Examples of good practice
Do you know of a good policy? Let us know and we’ll look at featuring it here.
Examples of bad practice
To illustrate why this guidance is important, we’ve included some examples where practice could (and should) be improved.
- We regularly see reference to “the CRB” – this refers to the Criminal Records Bureau, which hasn’t existed since 2012. This alone indicates that a company hasn’t properly (or effectively) reviewed its policy in a while
- Many organisations simply take the DBS sample policy (which includes reference to “ex-offenders”) without tailoring it to their organisation to reflect their actual policy
Frequently asked questions
This section will be added to over time, responding to the common questions we receive about this guidance.
Help with updating your policy
This guidance should help you to work on your policy. We welcome organisations coming forward who are actively working on their policy to update it to reflect this guidance. We are happy to confidentially review draft policies that are in the process of being updated. Get in touch by emailing firstname.lastname@example.org.
The DBS sample policy is worth looking at, but use this as guidance instead of simply adopting that policy.
- There is more information about developing your approach to criminal records, which forms part of the practical guidance section of Recruit!
- For further advice about this guidance, please contact us.
Has this been useful?
You can let us know by:
- Writing a comment on this page (see below)
- Sending your feedback directly to us
- Emailing us at email@example.com
Is there anything wrong with this guidance? Let us know – email firstname.lastname@example.org.