Assessing criminal records – Carrying out a criminal record assessment

Aim of this guidance

This guidance is designed to help employers develop an approach to assessing criminal records, help you make confident decisions about employing candidates with criminal records. and provide practical guidance for dealing with individual cases.

It’s based on a recruitment process where an applicant has disclosed a criminal record after a conditional offer of employment, in line with our principles of fair chance recruitment.

Two elements to consider when recruiting

When recruiting to any role, there are two combined factors to consider when looking at an applicant’s criminal record:

  1. The nature of the role. This will usually be established well in advance of recruitment – a clear description of the duties and responsibilities will help identify areas of potential risk
  2. The details of the criminal record disclosed by the applicant. This is best considered by having a face-to-face discussion with the applicant and in the context of the job description.

When to assess

An assessment of an applicant’s skills, qualifications and experience should take place first.

An applicant’s criminal record should be assessed separately, once you’ve decided you wish to offer the applicant a conditional offer of employment.

If you are conducting criminal record checks as part of your recruitment process, you need to decide whether to wait until the disclosure certificate comes back before conducting an assessment of what they’ve disclosed. To decide what process works best for you, you should consider that:

  • Not all employers carry out criminal record checks.
  • Criminal record checks cost money, can sometimes take quite a while and can cause delays.
  • Having carried out a criminal record assessment, you may feel confident in enabling the applicant to start in their role.
  • Sometimes applicants can be uncertain about their official criminal record and so may unintentionally disclose on a self-disclosure form something they didn’t need to (and that you legally shouldn’t consider), or not disclose something that you’ve asked them to disclose.

What should I ask / What can I ask?

If you’ve used a self-disclosure form, the ‘disclosure discussion’ is your opportunity to find out more about the circumstances that led to what was disclosed on the form.

To do this, you should develop a set of tailored questions. Some of these may be straightforward but you should treat each applicant individually. You should focus on asking specific questions that are based on the particular concerns that you have given the role they have applied for.

Before the meeting, you should consider the information the applicant has disclosed, and the role they’ve applied for, and think about what questions might be relevant.

  1. When did the offence occur?
  2. At what age was the offence committed?
  3. Was the offence a single occurrence?
  4. If multiple offences, were they part of a pattern of offending behaviour?
  5. Were there circumstances surrounding the offence? If so, what were they?
  6. What was their attitude to the offence?
  7. Have the applicants’ circumstances changed since the offence(s)? If so, how?
  8. Is the applicant taking part in any relevant programmes?
  9. Is the applicant barred from working in regulated activity (if applicable) with children and/or adults?
  10. Are there any sentence restrictions or requirements relevant to the role? (e.g. community order, licence, sexual offences register, restraining order, barred from working with certain groups)

 

Making a decision

You can make a decision after you have held a disclosure discussion (if this was necessary) and had an opportunity to properly consider all relevant factors.

  • The decision should be reaching used a common-sense approach – the template should help with this.
  • The assessment should involve a documented decision-making process that is signed by those who have undertaken the assessment.
  • You may decide to offer the applicant the position. This may include safeguards that you believe can be put in place to minimise any identified concerns.
  • Make sure that the necessary approval has been sought internally (e.g. someone in your HR department) before informing the applicant of your decision.
  • A formal record of the decision, with clear reasons, should be kept securely. If successful, the assessment should be stored on their personnel file and reviewed as and when appropriate.

Understanding formal criminal record checks

Criminal record information disclosed on formal checks is limited. Where a caution or conviction is disclosed, you will usually only be given details of the date, offence category and the sentence or disposal. Trying to interpret this information requires understanding of the criminal justice system and related terminology, which can often be difficult for employers.

However, interpreting and understanding in this way can only go so far. To properly understand the underlying circumstances, it is normally best to simply ask the applicant to explain. During any assessment, the questions you should ask will enable you to understand the behaviour that led to a criminal record. Each case is different, and they will be in the best position to explain the circumstances.

 

 

 

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