This crucial first question is often overlooked by employers. We know that many organisations ask questions about criminal records by default, because that’s what’s always been done. There is a widespread misconception that if an employer can ask, that means they should. This is not the case. There are a number of important questions to consider before asking about criminal records or when changing approach:
Is there a purpose for the data?
- In order to comply with the law, there must be a clear purpose for any criminal offence data collected. Requesting data that does not have a clear purpose is likely excessive data collection.
- Employers should question how they will use the data collected and whether it actually serves the purpose they cite. For example, if an employer collects criminal record data to ‘reduce risk’ – how does the information collected reduce risk?
Have you considered who you might exclude?
- Some people with criminal records will avoid applying for roles for which they will have to disclose their criminal record. Is the purpose of the data worth this deterrent effect?
- People who are racially minoritised are disproportionately represented at every stage of the criminal justice system. So too are people who are neurodivergent, people who have faced socioeconomic disadvantage, and people with other characteristics. If employers are deterring people with criminal records, this may undermine other efforts to ensure recruitment is inclusive of a diverse talent pool.
For some, having a criminal record can feel shameful. Societal attitudes to criminal records can exacerbate this feeling of shame, and can lead people to internalise an expectation of failure. Seeking new employment, or opportunities for personal development, can feel pointless. Many assume that they will be judged purely on the basis of their criminal record, rather than for their skills, character or intrinsic value.
The experience of disclosing a criminal record can range from being annoying, embarrassing, or retraumatising. The difficulty of disclosing a criminal record does not necessarily correlate with the seriousness of the original offence. We hear regularly from people who avoid disclosure for relatively minor infractions such as not paying bus fares or petty theft.
For some people, the period in their lives in which they received a criminal record was especially challenging. In general, open conversations about criminal records are rare. This can mean that those who hold them feel that they are alone. We know this is not the case; roughly one in six people in England and Wales have a criminal record. It is understandable, therefore, that many people avoid situations in which they may have to disclose or contextualise their criminal record.
Are you equipped with the resources to do so properly?
- Collecting, processing and managing criminal records data requires distinct processes, systems and training for staff. This can mean extra costs in staff time, or payment for official criminal record checks.
- The answer to a criminal record question does not determine whether or not these systems need to be in place; they are required even if no applicant ever discloses a criminal record.
- There are potential compliance risks if not handled correctly; including fines from the Information Commissioners’ Office, and in some instances criminal offences.
As a starting point, employers should critically evaluate the risks and the benefits of asking about criminal records. This should be done on a role-by-role basis, rather than taking a blanket approach across a whole organisation. Different roles within one organisation are likely to require different approaches.
There are roles for which criminal record data can serve a clear purpose and be worth the resource it requires to collect. You can find further guidance here on ensuring that, if asking, this is done fairly.
