• Aim of this guidance
• Why develop a policy?
• What makes a good policy?
• Legal and regulatory compliance
• Examples of good practice
• Examples of bad practice
• Frequently asked questions
• Help with updating your policy
• Useful resources
• More information
• Has this been useful?

Equality and diversity is all about treating people fairly. So it’s right to think of your approach towards applicants with a criminal record as part of your broader equal opportunities policy.

Some organisations include their approach to criminal records in their equality and diversity policy, but it can also exist as a standalone policy. Either way, a general statement in your equality and diversity policy can be useful. For example, you could say:

“We are committed to the fair treatment of our staff, potential staff and users of our services, regardless of race, gender, religion, sexual orientation, responsibilities for dependants, age, physical/mental disability or offending background.”

Although having a criminal record is not a protected characteristic under the Equality Act 2010, discriminating against this group can result in indirect discrimination – for example, some ethnic groups are more likely to be criminalised. Increasingly, employers are realising that diversity and inclusion is about more than ticking a box – it’s about making sure that your business benefits from the best talent, regardless of their background.

Organisations that work with children or vulnerable adults will have safeguarding policies and processes to ensure vulnerable people are protected from harm.  This will normally include a focus on recruitment, induction and supervision, including what checks you carry out on new people who work or volunteer. For some roles in these organisations, asking about criminal records will be a legal obligation.

We recommend that organisations see their policy on applicants with a criminal records as one strand of their safeguarding approach. Unless a person is barred from working in regulated activity, there is no legal reason why you can’t employ them. Most criminal records will not make someone unsuitable for work with children or vulnerable adults. People in recovery, or those who have moved away from gangs, will often have a criminal record, but does that make them automatically unsuitable for work with others experiencing what they once were? Those who have turned their life around after a difficult past can often bring valuable skills and experience which should not be overlooked.

Focusing too heavily on formal vetting procedures can create a false sense of security. Safeguarding depends on training, oversight and responding to concerns. A blanket ban on people with a criminal record is not an effective approach to safer recruitment.

Sklls for Care have produced a guide to recruiting people with convictions for social care roles.

The GDPR provides individuals with rights over their data. The first of these is the right to be informed. Applicants should be made aware of what data you plan to collect, what you will use it for and how – and for how long – it will be stored. If you ask about criminal records, you should make sure that applicants are able to access this information from the outset.

Making your policy public shows the world that you are a transparent and fair-minded company. You may want to keep more detailed guidance for internal use only. You might want to consider how to communicate your policy to existing staff. For example, you could include a section in your staff handbook that explains that you employ people with criminal records, the benefits this can bring to the organisation, and what staff should do if they have any questions or concerns.

For each area, we describe what we mean (‘What?’) and provide details of how you might do this (‘How?’) with some examples that you might use and adapt (although these will only work if they accurately reflect your approach)

A policy needs to be easy to understand. Try not to use complex legal language. Applicants also need to know it exists.

Don’t simply copy legislation – interpret the legislation and apply it to your process. Link to the policy from all your vacancies. Make sure it’s available to all applicants at the start of the recruitment process without them having to specifically request it; if you make it available ‘on request’, applicants may be concerned about flagging up that they have a criminal record (which they may not need to actually reveal to you).

A policy should start from a positive basis. Negative phrases such as “having a criminal record will not necessarily bar you from working with us,” (which we often see) sends the wrong message as it suggests that you’re starting from the presumption that it probably will.

For example, you could say:

“[Organisation] actively promotes equality of opportunity for all and welcomes applications from a wide range of candidates. [Organisation] recognises the contribution that people with criminal records can make as employees and volunteers and welcome applications from those with a criminal record. We select all candidates for interview based on their skills, qualifications and experience”

The vast majority of applicants that have a criminal record will have single, one-off offences from many years ago. Some might have more recent offences that are not relevant to the role. It’s important that you recognise this in your policy, instead of solely focusing on more serious examples that are likely to be rare.

For example, you could say:

“A criminal record will not normally, in itself, prevent an applicant from being appointed to the post. Suitable applicants will not be refused posts because of offences that are not relevant to the role and which do not raise serious concerns in the role for which they are applying. We will judge each case on its merits and not discriminate unfairly against any applicant on the basis of a conviction or criminal record information disclosed to us.”

Your policy should be unique to your organisation and reflect the values and processes that you have. You need to show that you’ve thought about it; don’t copy templates.

For example, think about the types of roles that you have. How does disclosure legislation apply to these roles? Which roles (in general terms) will involve which levels of criminal record check?

Your policy needs to make sure it correctly applies the laws surrounding criminal records, rehabilitation and disclosure correctly. Too often we see phrases such as “we carry out enhanced DBS checks on roles in the organisation” (even though that is likely to be illegal, as enhanced DBS checks can only be done on certain roles).

For example, there are a couple of phrases that will make sure you don’t misinterpret disclosure legislation:

“We only ask applicants to provide details of convictions and cautions that we are legally entitled to know about”

“For roles where the Rehabilitation of Offenders Act applies, we will ask applicants to disclose any unspent offences. Spent convictions do not need to be disclosed.”

“For roles that are exempt from the Rehabilitation of Offenders Act, we will ask applicants to disclose any convictions and cautions that would not currently by filtered by the DBS.

Your policy should explain what questions you ask about criminal records, and when you ask. This ensures that applicants know when they should (and shouldn’t) disclose, helping to reduce the chance that people disclose before or after you want them to. The DBS sample policy suggests asking “at interview, or in a separate discussion”. Adopting this wording exactly will still leave it unclear when you ask, or why. Organisations should have a specific process in place, and this should be noted in your policy.

The GDPR means you must explain the purpose and lawful basis for asking – in essence, why you’re asking. Our guidance for employers can help you identify a purpose and lawful basis.

For example, if you ask those you offer a position to, you could say:

“The successful candidate/s will be asked about relevant criminal records as part of pre-recruitment checks. If a relevant criminal record is disclosed we will ensure and open and fair discussion takes place before making a final offer. Failure to disclose information that is then later revealed on the relevant criminal record check could lead to withdrawal of an offer of employment. After receiving a criminal record certificate, we will discuss any matters revealed that have not been previously addressed, before reconsidering the conditional offer of employment. “

If you’ve signed up to the ‘Ban the Box’ campaign, you could say:

“We support ‘Ban the Box’. To ensure that we shortlist purely on merit, we don’t ask for criminal record details at application stage. What applicants are required to disclose will depend on the role that they are applying for. We will make it clear in the job description what type of role it is, and therefore what will need to be disclosed.”

If you carry out criminal record checks on successful applicants, you should make it clear what level of check you’ll be undertaking. Simply saying “a criminal record check will be undertaken on all roles” is not enough. Bear in mind that referring to “carrying out DBS checks” is not clear enough, as the DBS provide different levels of check.

For example, you could say:

“For those positions where a criminal record check is identified as necessary, all application forms, job adverts and recruitment briefs will make clear what level of check will be submitted on the individual being offered the position”

Your policy should explain how you make decisions based on criminal records disclosed by applicants or revealed on criminal record checks.

Our guidance on assessing criminal records should help. We have a criminal record assessment template. If you use something similar in your processes, you could say something like:

“For any information disclosed, cases will be looked on an individual basis, taking into account details such as;

• Whether it’s information we are legally allowed to consider
• Whether the offence is relevant to the position applied for
• The age at the time of the offence(s)
• The length of time since
• The circumstances surrounding the offence(s), and what has changed since

Any information disclosed will be treated in the strictest confidence. We will consider any information disclosed before confirming an offer of employment. If necessary, we may arrange a face-to-face discussion with the applicant to obtain further details. Failure to disclose relevant information when requested could result in disciplinary proceedings or dismissal.”

Many people with criminal records feel ashamed, embarrassed and worried about what will happen to the details they’re providing to you. Some will back out of the process as a result.

You can explain how you understand some of the concerns applicants may have and what steps you take in response. For example, you could say that:

“We take a positive approach to applicants with past criminal records”

“We ensure that all those involved in the recruitment process have received appropriate guidance and training in the legislation and practice of recruiting people with criminal records.”

“We ensure that all those who are involved in making suitability decisions based on an applicants’ criminal record have been trained to do so.”

The words that you use in your policy will give a strong impression of how you approach your process.

Avoid meaningless phrases like “you need to have a satisfactory DBS”. Stay away from stigmatising phrases like “ex-offenders” – use “applicants with a criminal record” as this is factually accurate.

Although your policy should aim to be short, it may end up being a couple of pages long. If this is the case, a short summary of the end-to-end process, from an applicants perspective, will help to ensure your policy is clear and easy to understand. Depending on how you build your policy, you need to make sure that, overall, it’s consistent and doesn’t give mixed messages

A simple ‘disclosure process’, broken down as bullet-points or in a flow-chart, will help applicants understand the process.

Applicants may have questions about your policy. They may be thinking of applying but have a question about your policy before they do. They may have general questions about their criminal record where they need to be pointed to sources of support externally.

Provide a specific point of contact internally who can answer general questions about your policy. Provide details of external sources of support (such as Unlock’s information site) that can help give advice to people with a criminal record.

For example, you could say:

For positions covered by the Rehabilitation of Offenders Act 1974, we will ask applicants to disclose any unspent convictions. For guidance in answering this question, visit the Unlock information site which has useful information on this legislation.

For positions exempt from the Rehabilitation of Offenders Act 1974, we will ask applicants to disclose any convictions, cautions, reprimands or final warnings that would not be currently filtered by the Disclosure and Barring Service. For guidance in answering this question, visit the Unlock information site which has useful information on filtering.

Your policy needs to be accurate, which means regularly reviewing it to keep it up to date. Criminal records and disclosure legislation and practice is constantly changing. Despite the CRB becoming the DBS in 2012, we still see policies refer to companies “doing CRB checks”.

You should aim to review your policy on an annual basis, and publish any updates on your website.