We received a call to our helpline about a hospice who were asking a misleading question about criminal records. The hospice has some jobs that involve regulated activity and they are therefore entitled to ask about cautions and spent convictions, and required to carry out an enhanced DBS check. However, the caller was applying for job covered by the Rehabilitation of Offenders Act 1974, and the employer should only have asked about unspent convictions, and carried out a basic DBS check.

We contacted the hospice and explained why we considered the question to be misleading, and suggested they provide separate questions so that applicants could select the one appropriate to their role.

The hospice has since updated their application form to include separate questions.

Lessons

Where employers use the same application form for all jobs, regardless of whether they are exempt from the Rehabilitation of Offenders Act, we advise they include separate questions regarding criminal records. They should also provide applicants with clear guidance on whether the role they are applying for is exempt or not. In addition, the GDPR requires employers to be transparent about why they are asking about criminal records. For jobs that are exempt from the ROA, employers are legally required to ask. For other jobs, employers must explain the purpose of collecting this information, the lawful basis and condition of processing, and provide privacy information.

Links

We have guidance on wording questions that ask about criminal records.

We have produced guidance for employers on the GDPR.

Notes about this case study

This case study relates to the work we’re doing to support and challenge employers as part of our work on fair access to employment.

Names and details have been changed to protect the identity of those involved.