Criminal justice charities are more keenly aware of the challenges faced by people with convictions and they’re often keen to get people with lived experience on board. However, these organisations frequently work with vulnerable groups and in environments with their own vetting rules. This creates a unique set of challenges and this guidance is designed to help criminal justice charities develop fair chance recruitment policies.
Think about why you’re asking
Responses to the Cabinet Office’s call for evidence highlights the many charities that actively recruit people with criminal records. Some do so to benefit from the life experiences of people with convictions or as part of a peer-led work. If your organisation is recruiting for roles where a criminal record is a requirement – like Unlock’s helpline volunteer roles – you will need to ask and the purpose of doing so is clear. Some charities offer a guaranteed interview for people with convictions – in those cases, applicants don’t have to disclose, but the purpose is to include them.
A significant number of charities still ask applicants about criminal records at the initial stage. Over half of people with a criminal record would not apply for a job where they needed to disclose their criminal record. If you haven’t already, why not consider joining the growing list of employers who have banned the box?
If a criminal record is not a requirement, there is no need to ask on application and recruiters should be clear about whether the need to ask at all. Disclosure laws mean that people can still be legally required to disclose old and/or minor convictions – if asked – which may not be relevant to the role. Do you really need to collect old and irrelevant information? Remember that for most jobs, you should ignore ‘spent’ convictions.
If you’re recruiting for a role that requires a standard or enhanced DBS check, or HMPPS vetting, you should make sure applicants understand this at the outset. Neither mean you have to ask applicants to disclose at the first stage, but you will need to build in the opportunity for a discussion about any information that will be (or has been) disclosed on a DBS certificate, or that might be an obstacle to vetting. We recommend that disclosure discussions take place after offer. A lot of CJ charities do this already.
If you plan to carry out criminal record checks you will need to ensure the job is eligible for the level of check requested. Knowingly requesting a higher level check is a criminal offence under the Police Act 1997. Employers who use information obtained from the DBS are required by the DBS Code of Practice to have a policy on recruitment of people with convictions.
Understand your data protection obligations
Processing of personal data, including criminal records information, is regulated by the General Data Protection Regulation (GDPR) and Data Protection Act 2018. This means you should identify a lawful basis and condition of processing and make applicants aware of you will uphold their data subject rights. This is a requirement even where the job means you have a legal obligation to ask about criminal records.
When you have determined your lawful basis and condition of processing criminal records information, you will need to document that. Individuals have a legal right to know how their data will be used so having an ‘Applicants with a criminal record’ policy is essential. It should be available to applicants at the point their data is collected.
The policy should:
- explain whether and why you will ask about criminal records and, if so, when this will happen.
- set out which roles are eligible for a criminal record check and at what level
- explain your approach to those who disclose.
- provide guidance to applicants on answering questions and where to seek advice
Keep your policy under regular review to ensure it’s up to date with changes in the law.
Collecting information only when it is necessary is a key part of complying with data protection legislation. It is unlikely that you will need to collect criminal records data from all applicants. Most will not be shortlisted and you will then have a lot of sensitive data that you are legally responsible for managing. This could be considered excessive data collection. Failing to comply with the GDPR can result in significant fines.
Being clear about the what, when and why you ask about criminal records will help determine whether it is really necessary. This is particularly important if part of your organisation’s remit is to increase employment opportunities for people with convictions – we should be setting the example we want other employers to follow.
Consider context – and challenge prejudice
Criminal justice charities know better than most employers that the context in which offending happens can be complex and varied. Having the opportunity to discuss their circumstances at the time and how things have changed since is key for many applicants.
This can be particularly important for people who have had a number of convictions or experienced homelessness, mental ill-health or addiction. In our experience people with criminal records may be able to honestly and accurately explain the behaviour that led to their arrest, they can often be confused about exactly what happened next, and especially what was recorded officially, and so don’t always disclose this information accurately. Bear this in mind and avoid creating tests of honesty/integrity by comparing an applicant’s self-disclosure with their DBS certificate.
If your organisation has a blanket ban on particular offence types, consider whether that is justified. Offence categories include a vast array of behaviours and, while some candidates with particular offences may be unsuitable for some roles, a blanket ban sends a troubling message to both individuals and other employers. If we are unprepared to challenge ourselves as a sector, how can we expect the wider world to do so?
Professionalise your recruitment practice
Make sure that those involved in recruitment are knowledgeable and confident in dealing with criminal records. Consider specific training for those regularly involved in talking to applicants about their criminal record and making judgements based on information disclosed – this is particularly important in a sector that is working hard to change the landscape for people with convictions.
Applicants with criminal records are well versed in the ways employers ask questions to try to get certain information. A question that appears to be asking for information an employer shouldn’t collect – for example spent convictions for a non-exempt role – can put applicants off. Asking clear questions will help you collect what you need without deterring excellent candidates. Providing guidance and directing to additional sources of advice can reassure applicants that they will be treated fairly.
Keep a record of the process you go through and the decisions made. This enables you to explain your decision-making and make confident recruitment decisions. Applicants have the right to request information held on them and having appropriate documentation will help demonstrate that you have followed your policy.
Documenting decisions will also help you assess whether you are fulfilling the purpose of asking – for example if you aim to recruit a proportion of staff with criminal records. Anonymised records of decisions made can also help with training new staff and updating your policy.