We’ve recently been involved in a case where a student’s union was considering taking disciplinary action against one of its new trustees for failing to disclose their conviction.

The trustee concerned had an unspent conviction at the time of their election to the board. After extensive research she had satisfied herself that her offence would not disqualify her from being a trustee, and at no time during the recruitment practice was she asked whether she had any unspent convictions.

However, the board had been made aware of the conviction by another student and were concerned that she had chosen not to disclose it. They took the view that although she had not been asked, advice they’d received from their legal team seemed to suggest that it would have been ‘good practice’ for her to have disclosed voluntarily.

The trustee was invited to a meeting in order to discuss the situation further.

Prior to the meeting, the Chief Executive contact us to seek further guidance and we were able to highlight that:

• The individual’s offence did not disqualify her from being a trustee of a charity
• At no point during the election process was she asked about her unspent conviction
• From our experience, we are not aware of any regulations which stated that it was ‘best practice’ for new or potential trustees to voluntarily disclose.

A week later we were informed that the board had decided not to take any further action and would be happy for the individual to continue in their role as a trustee.

Lessons

There is no legal requirement to ask employees/trustees general questions about their criminal record. However, organisations shouldn’t assume that by not asking, an individual will voluntarily disclose.

It there are certain types of offence that may be relevant to whether an individual is eligible to work in certain roles then an organisation may want to consider asking individuals to disclose ‘relevant’ offences only. In this case, this could be linked to guidance provided by the Charity Commission.

Links

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

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.