It’s easy to make assumptions about someone with a criminal record but organisations increasingly recognise that they cannot afford blanket exclusions. Instead they’re looking to the widest pool of talent when recruiting volunteers – and that includes the 11 million people in the UK with criminal records.
In most cases, a criminal record is not a legal barrier to voluntary work and, for many roles, asking about criminal records is not a legal necessity. Here you’ll find guidance and resources designed to help you confidently make decisions and about when to ask and how to assess applicants with criminal records.
Understand the job
A clear and detailed job description is essential for recruiting the right person. It should include the skills and experience you need from volunteer and their duties and responsibilities
If the role involves working with children or adults at risk, consider:
- the level of contact they have with children and/or vulnerable adults
- whether they will be supervised
- how they will carry out the role
- where they will work
Keeping an up-to-date log of all volunteer roles and the level of check required/carried out could form part of your safeguarding policy. It will also help you assess any risks and decide whether the job is eligible for a criminal records (DBS) check and at what level.
Decide whether to ask about criminal records
Roles working unsupervised with children or providing care or support to adults at risk are likely to be exempt from the Rehabilitation of Offenders Act 1974. Exemption depends on the role. The DBS provide the following as examples:
- Mohammad is a care worker and attends to Danny who suffers from Dementia. He visits Danny daily to prompt him to eat and take his medication. He also prompts him to wash regularly and supervises. Mohammad is in regulated activity with adults and can be asked to apply for an Enhanced DBS check with an Adults’ Barred List check.
- Theresa is a mobile hairdresser. She goes to a care home once a month to provide haircuts and perms to the residents who want them. As she is only providing the service to those who want it rather than because they need it, she is not in regulated activity and is only eligible for a Basic DBS check
For exempt roles you are entitled to ask about cautions and spent convictions (unless they are protected) as well as unspent convictions. You can carry out a standard or enhanced check, depending on the role. Anyone involved in delivering Regulated Activity can be subject to a barred list check. If a candidate is barred from regulated activity, they cannot be employed in the role, and applying may be an offence. If a candidate has a criminal record but is not barred, it is the employer’s decision.
For most roles there is no legal requirement to ask about criminal records. Retail workers, drivers, helpline advisors, volunteers working alongside others at a night shelter or day centre are usually covered by the Rehabilitation of Offenders Act. This means there is no legal requirement to ask. If you decide you need to, you are only entitled to ask about unspent convictions; if a candidate tells you about a spent conviction, you should legally ignore it. You can request a basic DBS check, which will show unspent convictions only.
A basic check costs £23 while a standard or enhanced check is free for volunteers. It may be tempting to take advantage of this, however carrying out a standard or enhanced check for a role that is not eligible is a criminal offence.
Only ask when necessary
It’s unlikely to be necessary to ask at application stage – and asking for sensitive information you don’t yet need could a breach of the GDPR. Being clear about what, when and why you ask about criminal records will help determine whether it is really necessary.
It can also put off applicants – the law on disclosure means people can still be required to disclose old and/or minor convictions if asked. Over half of people with a criminal record would not apply for a job where they needed to disclose their criminal record at the first stage. If you haven’t already, why not consider joining the growing list of employers who have banned the box? This means postponing questions about criminal records until later in the process so you consider an applicant on merit first. If you need to ask, we recommend waiting until conditional offer stage.
You should also consider whether to ask applicants to self-disclose or simply carry out a DBS check at the appropriate level. Bear in mind that asking for self-disclosure but not checking the information could be considered excessive data collection. Whichever you choose, giving applicants the opportunity for discussion is key. Understanding the circumstances at the time and how things have changed since will help you make a fair assessment.
Avoid creating tests of honesty/integrity by comparing an applicant’s self-disclosure with their DBS certificate. In our experience people with criminal records may be able to honestly and accurately explain the behaviour that led to their arrest, but can often be confused about exactly what happened next, and what was recorded officially. People may disclose information they don’t need to, or fail to disclose information they should. If this happens, explore the reasons with the applicant before making a decision.
Understand applicants with criminal records
11 million people in the UK have a criminal record. Most will have received a caution or a fine for a minor offence – they will not have been to prison and their criminal record will not be a barrier to voluntary work. The exception to this is if the applicant is on the DBS barred list and the role involves working with children or adults at risk. It is rare that an applicant on the barred list would knowingly apply for this type of role and it would be a criminal offence for them to do so.
Many organisations look for volunteers with ‘lived experience’ of the service they deliver, whether that’s support for domestic abuse survivors or people in recovery from drugs or alcohol. People with convictions have often experienced a variety of difficulties so excluding them because of a conviction could mean missing out on knowledge and experience that would benefit your organisation.Some organisations benefit from volunteers who are in prison or serving a sentence in the community.
If your organisation has a blanket ban on particular offence types, consider whether that is justified. Offence categories include a vast array of behaviours and, while some offences may mean a candidate is unsuitable for some roles, a blanket ban legitimises exclusion and sends a troubling message to applicants, service users, donors and others.
Make a fair assessment
The wording of an offence on a DBS certificate or a free text box on an application form tells you nothing of the circumstances. A conviction for ‘Actual Bodily Harm’ could indicate a serious and calculated assault – or it might have been a playground fight. Using the sentence as a proxy for seriousness can also be a mistake. Sentencing is within guidelines but judges have considerable discretion. Regional differences in sentencing mean people in some parts of the country are sentenced more harshly than people elsewhere, even for the same offence and circumstances. Studies show differences in sentencing between men and women and between people of different ethnicities even when convicted of the same offence. Black people are more likely to plead not guilty than white people. If a person pleads not guilty but is convicted, they will receive a harsher sentence than if they had pleaded guilty.
Rejecting a candidate on the wording of an offence could mean missing out on potential assets. Discussion with the candidate is your opportunity to ask questions and raise your concerns. A discussion in person gives you the chance to ask questions and address concerns.
Once you have a clearer picture of the circumstances you can make a fair assessment. Old and minor offences will usually have no impact on the candidate’s ability to do the job and needn’t be a barrier to making a positive contribution in later life. In these cases, you may not need to make a detailed assessment.
Where you do need to make a detailed assessment, using a template can help you make fair, consistent decisions.
Professionalise your recruitment practice
Make sure that those involved in recruitment are knowledgeable and confident in dealing with criminal records. Consider specific training for those regularly involved in talking to applicants about their criminal record and making judgements based on information disclosed.
Keep a record of the process and the decisions made. This will help you explain your decision-making and make confident decisions. Applicants have the right to request information held on them and having appropriate documentation will help demonstrate that you have followed your policy.
Documenting decisions will also help you assess whether you are fulfilling the purpose of asking – for example if you aim to recruit a proportion of staff with criminal records. Anonymised records of decisions made can also help with training new staff and updating your policy.
Understand your data protection obligations
Processing of personal data, including criminal records information, is regulated by the General Data Protection Regulation (GDPR) and Data Protection Act 2018. This means you should identify a lawful basis and condition of processing and make applicants aware of you will uphold their data subject rights. This is a requirement even where the job means you have a legal obligation to ask about criminal records.
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 – and making it accessible – is essential.
The policy should:
- explain whether and why you will ask about criminal records and, if so, when this will happen.
- set out which roles are eligible for a criminal record check and at what level
- explain your approach to those who disclose
- provide guidance to applicants on answering questions and where to seek advice
Keep your policy under regular review to ensure it’s up to date with changes in the law.
Collecting information only when it is necessary is a key part of complying with data protection legislation. It is 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. Failing to comply with the GDPR can result in significant fines.
Need more information?
Unlock’s guidance and resources are designed to guide employers through the complexities of criminal records disclosure, and are free to use. We recommend starting with:
Information from other sources
Employers across all sectors recognise the need to widen the talent pool and think seriously about how to include people with criminal records. Here are a selection of publications:
NHS Employers: Supporting conversations about criminal convictions
National Council for Voluntary Organisations (NCVO): Getting started with criminal records checks
If you’re looking for support in recruiting volunteers with convictions and dealing with criminal records fairly, please get in touch by emailing firstname.lastname@example.org.