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 more than 12 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.

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:

Scenario 1

• 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.

Scenario 2

• 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

The DBS provide guidance and a tool to help employers – including those employing volunteers – determine eligibility.

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.

 

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 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.

Understand applicants with criminal records

More than 12 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.

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.

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.