This is a very broad category. It includes offences such as sexual assault and rape. It can also include urinating in the street on a night out, and a 17 year old sleeping with their 15 year old partner.

Often, people assume this offence would make somebody unsuitable from working with children. However, consider this situation. A couple are having an argument, and one party threatens to leave and return to Italy. The other’s sister keeps her niece for longer than agreed to try and get the couple of sort out their differences. She is ultimately convicted of child abduction.

Immediately, people think drugs are involved in this offence. In fact, it’s the complete opposite. This offence title shows how offence terms can be misleading. This could relate to a 17-year old who uses a fake driving licence to buy alcohol.

Often, people assume this involves breaking in to somebody’s home. Instead, this could relate to a homeless person who goes into an empty warehouse and lights a fire to keep warm.

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.

Carrying out a criminal record assessment

If the shortlisted applicant discloses a criminal record on the self-disclosure form, you should carry out a criminal record assessment.

The assessment is made up of two main parts:

1. An initial assessment – this comes after the applicant has completed a self-disclosure form.
2. A face-to-face meeting – referred to here as a ‘disclosure discussion‘. If necessary, and particularly for more substantial disclosures where there are concerns, a face-to-face discussion should be conducted to discuss the relevance of their criminal record.

Step 1 – Initial assessment

Where an applicant discloses a criminal record on a criminal record self-disclosure form, you should consider what they’ve disclosed and make an informed decision relating to their criminal record before confirming their offer of employment.

An initial assessment means coming to a decision based on the information disclosed through the self-disclosure form.

• This can often be done for old, minor or clearly irrelevant information, where the decision could be to appoint with no further assessment.
• It’s also an opportunity to make sure that you’re only taking into account information you’re legally entitled to. For example, if the role is covered by the Rehabilitation of Offenders Act 1974, you should discard any spent convictions. If the role involves a standard or enhanced DBS, you should discard anything that would be filtered.

The decision at this point is whether a disclosure discussion is necessary or not. A decision to reject at this stage is not advisable, unless there are clear legal issues that are insurmountable, such as the person being legally barred from the role.

Step 2 – Disclosure discussion

In some situations, a disclosure discussion might be needed. There are some key points about how to approach this.

• It can be incredibly difficult for an applicant to show themselves in the best possible light to a prospective employer when having to discuss past matters that they may feel ashamed or embarrassed about.
• This discussion needs to be clear in its purpose; it is to support you in making an informed decision as an employer. Explaining this to the applicant should help to instil confidence and openness.
• The approach of the discussion should be explained in advance, and carried out sensitively.
• Think beforehand about the questions you’ll ask.
• Consider carrying out the discussion alongside a colleague, so that one can take notes and provide support, although consider whether this may risk over-formalising the discussion.
• Be clear that it’s not your role to determine whether the person is guilty or innocent.
• It’s a good idea to note what is said, and keep this stored securely on the applicant’s file, in order to avoid disputes further down the line.

We have a template criminal record assessment with questions that you can adapt to your business.

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.

How to assess what’s been disclosed

You should base your assessment on actual concerns that are relevant to the role.  There are:

1. Factors to consider for a particular role
2. Factors to consider in assessing a criminal record

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.

A criminal record check is a formal document which reveals information from the Police National Computer – the date of conviction/caution, the technical offence category and the disposal. There is no subjective information disclosed in the conviction/caution section.

If you have concerns about information disclosed on an official certificate, or if it is not as you expected, you should discuss your concerns with the applicant/employee and carry out an assessment (where necessary).

If there is a serious public protection issue involving the applicant, the police can disclose additional information to employers:

1. Through an enhanced DBS check application, the police have an opportunity to disclose any other information that they deem relevant to the role applied for.
2. The police may disclose relevant information to employers. This may be if the applicant is under a multi-agency public protection arrangement (MAPPA) or subject to any civil orders made as a result of a sexual offence.

First, establish whether the role is classed as ‘regulated activity’. If it is, then you have a legal obligation to carry out a Children’s Barred List check. This will tell you whether the individual is barred from working with children. If they are, then you cannot legally employ them. The number of people barred from working with each group is relatively small (approximately 50,000).

If an applicant is not barred from working with children, then it is up to you to decide on their suitability for the role. You shouldn’t refuse an individual simply because they have a criminal record. If their criminal record doesn’t indicate that they would be unsuitable, you should continue to recruit them. This guidance is designed to help you to assess suitability.

If an applicant has an old copy of a criminal record check, it can be helpful for them to provide this to you so that they can accurately explain their criminal record. However, two legal problems arise.

Firstly, it may not be the right level of check. For example, an applicant shouldn’t be asked to show an enhanced check for a role only eligible for a basic check; equally a basic check will not contain information that would be disclosed on an enhanced check.

Secondly, it’s not up to date. This could mean a more recent incident was not recorded. It could also mean you see information that is no longer disclosable: certain cautions or convictions are filtered after a period of time. You could end breaking the law by basing your decision on information you’re not allowed to use.

You will notice that we avoid the phrase ‘risk assessment’. We believe that the purpose of understanding and assessing an applicants criminal record is broader than that, and to focus very narrowly on ‘risk’ too readily accepts that a past criminal record is a strong indicator of future risk – which is why, instead, we focus on ‘assessing’ and ‘understanding’, then ‘addressing concerns’.

Ideally, yes. That’s because you should attach quite a bit of importance on how the applicant comes across – do you feel that they are being genuine and remorseful, for example? This is much better assessed in a face-to-face situation. Ultimately, that might not always be practicable. If that’s the case, a specific conversation some other way is a must. Ultimately, it’s important to discuss the concerns that you have, and not simply rely on what the applicant has disclosed in writing as a reason to no longer offer them the role.