HMPPS confirms prison and probation roles are covered by filtering rules

Samantha contacted Unlock’s helpline for advice on applying for a ‘Through the Gate’ role with Sodexo. The job involved helping women prepare for leaving prison and would be subject to prison vetting. Sodexo has banned the box, so Samantha was surprised to see the application form ask:

Have you ever been convicted of any offences including cautions and/or bind-overs, or do you have any charges pending?

If you answered YES to the question above – please provide further information below including the dates if you answered NO, please enter N/A in the box.

The wording of the question might lead applicants to disclose a protected caution or conviction, meaning Sodexo could take into account information are not legally allowed to consider. We wrote to Sodexo to raise these concerns. They told us that:

The Ministry of Justice have advised us that filtering of convictions only applies to DBS checks and not MoJ clearances, self-disclosure of all convictions is a requirement of the MoJ check.

There are a small number of jobs were filtered convictions can be taken into account, but these do not include jobs in the prison or probation service. The application of these rules to sensitive employment – namely as a police support worker – was tested in court in 2017. Jobs that are exempt from the filtering rules include:

  • judicial appointments
  • constables and police cadets
  • employment in the Serious Fraud Office or National Crime Agency
  • HMRC Commissioners
  • The Official Solicitor and their deputy
  • certain appointments to the office of Public Trustee
  • any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004. 

Prison and probation roles are not exempt, meaning applicants are legally entitled to withhold this information. We contacted HMPPS’s Operational Support Group to confirm. They told us that:

Filtered cautions and convictions do not need to be disclosed, as these are not considered as part of the vetting decision making process.

As the vetting process does not take into account filtered cautions/convictions, collecting this information could be considered excessive – and therefore a breach of the GDPR. We contacted Sodexo with this information and, happily, they took this on board.

Claire Wickens, head of HR at Sodexo UK and Ireland, told us:

Now that we have this clarification regarding filtered convictions we will alter our processes and guidance to candidates accordingly… Deterring applicants with old or minor convictions from applying for our roles is certainly contrary to our intentions and beliefs and we have reviewed our processes and…we have decided to align to the rest of the Sodexo business in changing our practice so as not to ask for criminal conviction information at the application stage.

Lessons

Prison and probation roles are exempt from the Rehabilitation of Offenders Act 1974 so cautions and spent convictions can be taken into consideration. However, these jobs are not exempt from the filtering rules and applicants do not need to disclose filtered cautions or convictions.

This case demonstrates that ban the box is possible even for employers who have stringent vetting processes. Old and minor criminal records need not be a barrier to jobs in secure or sensitive environments, and these can be considered alongside an applicant’s other competencies. Along with Sodexo, HMPPS and Serco no longer ask about criminal records on application.

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Rachel Tynan