These principles are broad guidelines on recruiting people with criminal records and dealing with criminal records fairly. 

The principles have been developed in consultation with employers, data protection experts, and people with a criminal record. They can be used as a benchmark for employers in ensuring the fair treatment of people with criminal records.

Principle 1 – Consider the need to ask

For most jobs, employers are not legally obliged to ask about criminal records. 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? Being clear about your purpose will help you to assess whether it is really necessary. If you currently ask about criminal records, ask “why do we do this?” If you decide you don’t need to ask, then there’s no need to read any further. If you do, please read on. 

Many employers choose not to ask about criminal records because they do not believe it adds value to their recruitment process. Instead, they have measures in place to properly manage and oversee their employees. Many employers recognise the major shortfalls of relying on criminal records for reducing risk in the workplace.

Principle 2 – Follow rehabilitation & data protection legislation

Criminal records information is sensitive and, if you do ask you will need show that asking is necessary and complies with the law. Criminal records disclosure is covered by overlapping laws. For example:  

  • The Rehabilitation of Offenders Act 1974 (ROA) provides for some criminal records to become spent after a period of time. For most jobs, you are not allowed to consider convictions that are spent
  • Collection of all personal data, including criminal records information, is covered by the General Data Protection Regulation (GDPR) and Data Protection Act 2018. This means identifying a lawful basis and condition of processing and letting applicants know how you will uphold their data subject rights. Failing to comply with the GDPR can result in significant fines
  • 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
Section 184 of the Data Protection Act 2018 makes it a criminal offence to require an individual to provide a copy of subject access record (often obtained from the police directly). Instead, employers should use official criminal record checks from the Disclosure & Barring Service, at a level appropriate to the role. Employers that carry out a criminal record check at a higher level than the role is eligible for could be committing a criminal offence under the Police Act 1997.

Principle 3 – Consider the right time to ask

Collecting information only when it is necessary is a key part of complying with data protection legislation. It is highly 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

Instead, think about when that information is really needed – that will usually be after a conditional offer is made. We recommend removing questions about criminal records from your application form.

 If you are recruiting for regulated activity roles you can defer questions about criminal records to a later stage but ask the applicant to confirm that they are not barred from working with the relevant vulnerable group.

Principle 4 – Ask clear questions and provide guidance

You will need to ask clear questions to make sure applicants provide information you need. The law around criminal records disclosure is complex and providing guidance to applicants will help ensure you don’t collect information you don’t need or shouldn’t have

Legally, there are very few situations where you would be unable to employ somebody due to their criminal record. 

For most jobs, it should be made clear that applicants do not need to disclose convictions that are ‘spent’ under the Rehabilitation of Offenders Act 1974.

Principle 5 – Have a clear and accessible policy that you review

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 and when you will ask about criminal records
  • explain your approach to those who disclose
  • set out which roles are eligible for a criminal record check and at what level
  • provide guidance to applicants and signpost to independent advice
  • remain under review to ensure it’s up to date with changes in the law
Make your policies accessible to applicants and keep them under review. By looking at the judgements made by different decision-makers you can ensure fairness and consistency when dealing with applicants who have criminal records.

Principle 6 – Consider context and relevance

Written information, whether official or provided by an individual, can be difficult to put into context. Experience shows that while 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. Give applicants an  opportunity to explain the circumstances and address any concerns you might have.  

Don’t limit the discussion to the offence. Instead, focus most on what the applicant has done since; encourage them to discuss their rehabilitation and the positive steps they’ve subsequently taken. Long-term studies show that the risk of reoffending reduces over time. 

Principle 7 – Document your decision-making

Keep a record of the process you go through and the considerations you give when assessing criminal records. 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. 

If you think you might have to refuse an individual because of their criminal record, provide clear reasons. If there’s a chance you might consider them at a later date, say so. If not, let them know that too – don’t create false hope.

Employers sometimes worry about being held liable if things go wrong in the future. Even though this rarely happens in connection to an applicant’s criminal record, having a documented decision-making process will give you confidence in the decisions that you make.

Principle 8 – Be confident in your process and practice

Make sure that those involved in recruitment are knowledgeable and confident in dealing with criminal records. Consider specialist training for those regularly involved in talking to applicants about their criminal record and making judgements based on information disclosed.  

It is vital that staff with key recruitment and decision-making responsibilities feel confident in the judgements they’re making. Any staff assessing criminal records should have appropriate guidance and training so that they can make the best decisions. Having confidence in your process will ensure you can communicate clearly to prospective applicants, and will ensure any changes you make are lasting and sustainable.

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