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.
Why is this important?
There is a lot of confusion about criminal records. Confusion can create anxiety and anxiety often leads to risk aversion and the rejection of otherwise qualified candidates because of a criminal record. In some cases, a criminal record may make a candidate unsuitable. In most cases though, it will not be relevant and
Often, it’s easy to make assumptions about what was involved. Consider these examples:
Having a clear process in place for assessing criminal records means you are better able to understand specific situations and make confident recruitment decisions.
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:
- 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
- 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. Why is it important it happens after conditional offer?
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.
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:
- An initial assessment – this comes after the applicant has completed a self-disclosure form.
- 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.
- When did the offence occur?
- At what age was the offence committed?
- Was the offence a single occurrence?
- If multiple offences, were they part of a pattern of offending behaviour?
- Were there circumstances surrounding the offence? If so, what were they?
- What was their attitude to the offence?
- Have the applicants’ circumstances changed since the offence(s)? If so, how?
- Is the applicant taking part in any relevant programmes?
- Is the applicant barred from working in regulated activity (if applicable) with children and/or adults?
- 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)
- Building on the question above about circumstances, you might ask if the individual had issues at the time, such as bereavement, depression, alcohol/drug issues, financial difficulties). If so, what’s different now? Are any of those circumstances still present?
- What positive steps have they taken to address their offending and their motivations behind offending?
- Is there anybody supporting them in dealing with their convictions and/or trying to find work? Would the applicant be happy for them to be contacted?
How to assess what’s been disclosed
You should base your assessment on actual concerns that are relevant to the role. There are:
- Factors to consider for a particular role
- 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.
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.
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:
- 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.
- 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.
Frequently asked questions
This section will be added to over time, responding to the common questions we receive about this guidance.
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.
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.
We have produced a criminal record assessment template that you might choose to use and/or adapt to your organisation.
This template is designed to be completely internally and is particularly useful for employers that currently take a risk-averse approach to recruiting people with criminal records. It is ideal for employers that might otherwise reject an applicant based on what the applicant has disclosed in writing.
Has this been useful? You can let us know by: Is there anything wrong with this guidance? Let us know – email email@example.com.
Has this been useful?
You can let us know by:
Is there anything wrong with this guidance? Let us know – email firstname.lastname@example.org.