Recruitment agencies are an important source of job opportunities for people with a criminal record.
This guidance sets out some of the things recruiters will want to consider when looking at their approach to applicants with criminal records.
Talking to candidates about criminal records
Knowing if, when and how to ask about criminal records can be a challenge for a recruitment agency. Different clients will have different needs and policies and your approach to applicants with criminal records will depend on the role you are recruiting for.
Banning the box means considering applicants on their skills and abilities first. If you need to ask about criminal records, you can do so at a later stage. This might be after shortlisting, at an interview, after the first or second round of interviews or after a conditional offer is made.
The right time will depend on the process you have in place with your client and the nature of the role.
Talking to clients about applicants with criminal records
A proactive approach can prevent difficulties later. Find out from your client what their approach and attitude is to candidates with a criminal record. Some clients will be risk averse but promoting the positives may help them think differently.
The Conduct Regulations mean you need to have sufficient information from a client to put forward suitable candidates. With this in mind, take time to understand their policy – do they ask about criminal records, do they carry out DBS checks, what are the potential risks and concerns? Knowing the answers to these questions will help you select appropriate candidates and prepare them. It will also help you avoid unnecessarily dismissing potential candidates because of a criminal record that isn’t relevant to the job.
Where possible, candidates should have the opportunity to disclose themselves. You can help them prepare for this by making clear what the role involves and what they will be required to disclose. If that’s not possible and you need to present a client with a candidate’s criminal record information, make sure to include:
- Your assessment of the candidate’s suitability for the role
- Any background and mitigating circumstances to the offence
- The length of time since the offence occurred and change in circumstances since
- The applicant’s current attitude to the offence
Understanding the law
Recruiters should be aware of their obligations under the General Data Protection Regulation (GDPR). Employers who collect personal data about an applicant during a recruitment process, either directly or through a recruitment agency, must provide the applicant with a privacy notice. This notice should set out certain the purposes of processing the data, the legal bases for processing and the period for which the data will be retained.
To process personal data about criminal convictions, employers must have both a lawful basis under Article 6 and either legal authority or official authority for the processing under Article 10 of the GDPR. These should be set out in the privacy notice.
Employers should put in place policies setting out how long data will be retained and how it will be stored and should retain only the minimum data required. Applicants should also be informed of their data subject rights.
Where a recruitment agency processes applicant data on behalf of the employer, the recruiter will be a “processor” with specific obligations under the GDPR. Like controllers, processors are also liable for claims for compensation and damages, and enforcement action.
