Practical guidance – Wording questions that ask about criminal records

Aim of this guidance

This guidance is for employers that currently ask about criminal records as part of their recruitment process. It aims to clarify how to word a question, from a technical perspective, that might be used to ask applicants about their criminal record. The question could, for example, be put to applicants who have received a conditional offer of employment.

It is based on you obtaining details in writing, with the potential for discussing in more detail verbally where there are concerns. We have separate guidance on ‘when’ to ask on carrying out an assessment, thinking about what questions you might ask in a face-to-face discussion with an individual who has disclosed a criminal record.

 

Why this is important

A significant number of employers ask applicants about their criminal record as part of their recruitment process. However, there is a lot of confusion about how to word the question. We regularly receive questions from employers about this, and many individuals contact us confused by the questions they’re being asked.

  • There can be confusion amongst applicants about whether they need to disclose or not.
  • People with offences that don’t need to be disclosed might be put off from applying because they believe they’re being asked to disclose them.
  • More information than necessary might be disclosed, running the risk that you take into account something that you’re not legally allowed to consider.
  • Information which you wanted to be disclosed might not be because you didn’t make it clear that the applicant needed to disclose this

Significant changes to legislation in recent years means that questions you currently use might be unclear, misleading or out of date.

 

Types of questions

There are two ‘types’ of questions that you could ask. The type of question to use depends on the specific job role involved. To help make this guidance easier to understand, we refer to them as ‘type 1’ and ‘type 2’ roles. These depend on whether the role is covered by, or exempt from, the Rehabilitation of Offenders Act 1974 (ROA).

  1. Type 1 role – This is a role that is ‘covered by the ROA’ or is a ‘basic check’ role. This type of role can ask about unspent offences.
  2. Type 2 role – This is a role that is ‘exempt from the ROA’ or is a ‘DBS’, ‘standard check’ or ‘enhanced check’ role. This type of role can ask about unspent and most spent offences.

Step 1 – Understanding the role

If you decide to ask applicants about their criminal record, the first step should be to work out what type of question to use. It is important to make sure you ask the type of question that is appropriate for the particular role.

We are developing separate guidance on understanding job roles and the level of disclosure they’re allowed. In the meantime, as a broad rule of thumb, every role can be classed as a ‘type 1 role’ (i.e. entitled to ask about unspent offences). Only those roles listed in DBS guidance could be classed as a ‘type 2 role’ (i.e. entitled to ask about both unspent and spent offences).

However, a word of warning. Simply because you’re allowed to ask about criminal records doesn’t mean you have to. Indeed, there are a number of data protection issues you need to consider if you are thinking about collecting criminal record details as part of your recruitment process.

Step 2 – Choosing the right question

Depending on how you plan to ask about criminal records, you may decide to ask a simple question with links to further information for help in answering it, or you may want to ask a very technically accurate question. Some examples are provided below and these are also used in the resources later in this guidance. Ultimately, irrespective of the question you use, it’s important to be clear what you want to be disclosed. It’s equally important to be clear what you don’t want to be disclosed.

Type 1 roles (those covered by the ROA)

For these roles, you should make it clear that spent convictions are not required.

This example is short, simple and uses guidance to help. However, it uses the term  ‘conviction’. Technically, there are other court disposals that could be unspent that are not classed as convictions, which is why the suggested guidance comes in handy.

Question – Do you have any unspent convictions? Yes/No

Additional guidance – Please tick “Yes” if you have any convictions that are not yet spent under the Rehabilitation of Offenders Act 1974. The term ‘convictions’ is used to refer to any sentence or disposal issued by a court. If all your convictions are spent, you can tick “No”. If you’re not sure if your convictions are unspent or spent, you can use a tool available at www.disclosurecalculator.org.uk and read guidance at hub.unlock.org.uk/roa.

This question is longer but technically more complete. For example, as it’s possible for conditional cautions (which are issued by the Police, not a court) to be unspent for a short period of time, the term ‘offence’ is used to cover both convictions and cautions. Additional guidance below the question itself may not be necessary, apart from referring to a policy document where there are more details about how to answer the question.

Question – Do you have any offences which are currently unspent under the Rehabilitation of Offenders Act 1974 [You do not need to disclose anything that is deemed ‘spent’]

Type 2 roles (those exempt from the ROA)

For these roles, you should make it clear that both unspent and spent convictions might need to be disclosed, although cautions and convictions that are ‘filtered’ (or ‘protected’) do not need to be disclosed.

This example is short and simple. It uses additional guidance to assist the applicant in answering the question.

Question – Do you have any convictions or cautions that would not currently be filtered by the DBS?

Additional guidance – The term ‘convictions’ is used to refer to any sentence or disposal issued by a court. The term ‘cautions’ includes reprimands and final warnings. You do not need to disclose anything that would be currently filtered from the Police National Computer by the Disclosure & Barring Service. If you’re not sure if your convictions or cautions are filtered, you can find out more from hub.unlock.org.uk/filtering.

This example is relatively short and simple. It could be used where there are more details provided in a separate policy document which is linked to from the question.

Question – Do you have any convictions or cautions that would not currently be filtered by the Disclosure and Barring Service (DBS)? [You do not need to disclose anything that would be filtered by the DBS]

This question is longer but technically more complete, and so additional guidance in the question itself may not be necessary, apart from referring to a policy document for more details.  The term “protected” is used, which is a legal term and can be confusing. This is the template question that the DBS currently provides.

Question – 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)?

For some type 2 roles, there may be a need for a further question. If the role is classed as ‘regulated activity’ and involving an enhanced plus barring check, you should make sure that the individual is not on the Children’s or Adult’s Barred List (depending on the role). You can do this by asking the applicant at the application stage whether they are barred from working with the relevant group, and this can be checked as part of the DBS check later in the recruitment process.

Question – This role involves regulated activity with children. Are you on the Children’s Barred List?  Yes/No

and/or

Question – This role involves regulated activity with adults. Are you on the Adult’s Barred List?  Yes/No

Step 3 – Deciding how to ask

Now that you’ve worked out what question to ask, how to ask the question depends on your organisation. There are bigger questions about ‘when’ to ask, which is covered in separate guidance here.

However, for the purposes of this guidance, the focus is on how to ask the types of questions above using some form of document; we refer to this as a ‘self-disclosure form‘. This type of form provides you with a written record of what the applicant has disclosed, which can be useful for both you and them.

  • Provide you with evidence of what information the individual disclosed to you, reducing the likelihood of disputes later on
  • Provide the individual with proof of what they’ve made you aware of
  • Help you to make an initial assessment of relevance, enabling minor disclosures to be dealt with simply and swiftly
  • Be used by employers who decide not to undertake formal criminal record checks

It isn’t normally appropriate to use this form to get details of any mitigating circumstances. That might come later in the process in a face-to-face discussion, if you have concerns about the information they’ve disclosed. It may be that an applicant provides more details when completing the form, but it shouldn’t be required of applicants.

There are generally two options:

This works well for employers that predominantly have one ‘type’ of role. For example, all roles might be classed as ‘type 1’ (i.e. covered by the ROA), meaning there are no roles that will need to use the ‘type 2’ question. It also works well for employers that are able to choose to issue specific forms during the recruitment process.
This works well for employers that have different ‘types’ of roles but want to have one standard self-disclosure form. For this to work well, it must be clear which ‘type’ of question the individual should answer. For example, it may be stated in the job description what ‘type’ of question will be asked at a later stage.

In the resources section, you will find templates for each of the above.

Although it’s not the aim of this particular guidance, it’s also important to make sure, regardless of what is disclosed through the self-disclosure form, that you don’t see that as the end of the process.  It’s important to give the applicant the opportunity to put their disclosure into context, to explain the circumstances and to provide you with reassurances. It’s not possible for a written record to adequately achieve this, so it may be necessary to arrange a face-to-face discussion after receiving the written disclosure, if you have concerns about what the individual has disclosed. We have separate guidance on assessing a criminal record.

Step 4 – Asking only for relevant information

The suggested questions and templates in this guidance relate to the ‘legal maximum’ that you’re allowed to ask for under disclosure legislation. However, under data protection legislation, you should only be requesting information that you believe is relevant. Under the ICO’s Employment Practices Code, you should limit the collection of information to offences that have a direct bearing on suitability for the job in question.

As a result, you can choose to go further than disclosure legislation legally requires you to.

If there are certain types of convictions that you don’t think are relevant, you should inform applicants that they don’t need to disclose them. For example, you might think that motoring offences which didn’t result in a prison sentence don’t need to be disclosed, even if they are still technically unspent.

A good example is the approach of UCAS. When applying to University, UCAS initially only ask about ‘relevant’ convictions when applicants apply to University (for some courses, they ask for more later). They define ‘relevant’, which to them includes offences involving violence, sexual offences, and drugs supply offences, amongst others.

Useful resources

Applying the guidance above, we have produced a couple of templates that you can use and/or adapt to your organisation.

Good practice tips

  1. Explain: You should make it clear why you are asking for formal disclosure of an applicant’s criminal record. For example, a formal disclosure may be the first step, and if there are any concerns, you might arrange a face-to-face discussion with the individual concerned. This can all be detailed in an ‘Applicants with a criminal record’ policy.
  2. Ask specific questions: If you’re only wanting to know about certain types of convictions, make this clear in the question that you ask.
  3. Use the right form: Make sure your recruitment process is set up to be able to issue the correct type of question for the particular role you are recruiting for.

Examples of bad practice

To illustrate why this guidance is important, we have included some examples where practice could (and should) be improved.

The question below appeared on the application form for a job at a waste disposal company.

waste

What’s wrong with the wording above?

  1. It’s not clear. The role is ‘covered by the ROA’ – this means that the applicant doesn’t have to disclose spent convictions. This isn’t made clear in the question.
  2. It’s misleading. The use of the word “any” suggests that an applicant has to disclose a conviction, even if it is now spent.
  3. It’s not good practice. The ‘tick-box’ on an application form goes against good practice promoted by the Ban the Box campaign.
  4. It’s not helpful to the employer. There is no room to provide further details, nor is there any guidance about how to provide further details.

Having a Yes/No question, or providing the applicant with limited space to give full details of their criminal record, won’t provide you with the level of detail needed to help you to make an informed decision. That’s one of the reasons why the Ban the Box campaign is so important.

Employers that ask unclear questions, or ask for more information than they’re entitled to, could be breaching the first principle of the Data Protection Act 1998 by not processing personal data fairly and lawfully.  An example of where this has happened is when the Disclosure of Barring Service were found to be asking applicants about all convictions on their own forms, even if the conviction is eligible for filtering and so didn’t need to be disclosed.

The question below appeared on the application form for a job in social care at a local authority.

council

What’s wrong with the above?

  1. It’s long and confusing. At the beginning, the phrase ‘unspent’ is used, despite the role involving a level of check that will disclose spent convictions too.
  2. It’s inaccurate. It states that applicants have to disclose “any convictions, cautions….”. It fails to take into account the DBS filtering process. It also asks for permission to undertake a ‘Disclosure Check of Police Records’ – such a check does not exist.
  3. It’s out of date. It refers to the Criminal Record Bureau, which was scrapped in 2012.
  4. It’s not good practice. A broad ‘tick-box’ on an application form goes against good practice promoted by the Ban the Box campaign. For this particular role, there could have been a very specific question about whether an applicant is an relevant barred lists.

Frequently asked questions

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

 

More information

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

Has this been useful?

Let us know if this guidance has been useful. Have you used it in your organisation? Has it helped you to change your policy or practice? Please let us know so that we can show the impact of this guidance and continue to help others.

You can let us know by:

  1. Writing a comment on this page (see below)
  2. Sending your feedback directly to us
  3. Emailing us at recruit@unlock.org.uk

 

This guidance was last updated in February 2016

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

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