Contents
Aim of this guidance
This aim of this guidance is to support you in considering when to ask about criminal records if you currently ask for them as part of your recruitment process. Remember – many employers choose not to ask about criminal records, so don’t assume that you have to ask. However, if you do ask, this guidance should help you decide when to do so.
Why this is important
Applicants do not have to voluntarily disclose their criminal record. If you want to know about criminal records, you need to ask.
Employers often ask on the application form, but there are problems with this approach. For example, you will be collecting large amounts of sensitive data, putting you in breach of data protection law and risking fines and reputational harm. You should only ask about criminal records if and when necessary. This will not usually be until after a conditional offer has been made. There is no law or rule that requires employers that use DBS checks to ask about criminal records on the application form.
- Asking on application is likely to be a breach of the General Data Protection Regulation (GDPR) as you will be collecting sensitive data that you don’t yet need.
- A tick box won’t allow the applicant to provide you with the level of detail needed for an informed assessment.
- It’s likely that employers asking at this stage are doing so to exclude candidates who disclose
- Applicants are likely to be put off applying if they think they will be rejected at the first stage
Many employers have removed the question about criminal records from the job application form, deferring the question until later in the application process. This allows the applicant to be considered first on their skills and abilities.
Asking after conditional offer
A key principle of Fair Chance Recruitment is only asking about criminal records when necessary. This usually means removing the tick-box from application forms and deferring questions about criminal records until after a conditional job offer. We have yet to come across a legal or contractual reason why this cannot happen. Leaving the assessment of criminal records to this stage means that you’ll have chosen your preferred candidate based on their skills and experience.
Criminal record information can be requested at the same time as other pre-employment checks, with a conditional offer of employment being made subject to the assessment of their criminal record. You can then arrange a meeting to discuss questions or concerns following disclosure. If you decide the applicant is unsuitable because of their criminal record you can withdraw the offer provided you:
- make it clear that the offer is conditional on being happy with their disclosure
- don’t take into account information you’re not legally entitled to (such as spent convictions for most jobs)
- come to a reasonable decision as to why it’s justified to withdraw the offer.
I have an unspent criminal conviction. When I was applying for various jobs, from one employer I really appreciated the fact that I was not asked about criminal record until being offered a job – I was judged on my skills and experience first. On receiving the draft contract, it was clear that my conviction would need to be declared. I phoned HR and was given the opportunity to explain my situation face-to-face. I was told that they could not follow through with the offer and gave me a very clear (and understandable) explanation. Whilst disappointed, I also feel that I was fairly treated and didn’t walk away with a negative view of the employer. I was treated as a human being.
Asking after shortlisting
If there are clear operational reasons why you cannot wait, you might consider asking applicants about criminal records before making an offer. Applicants can be sent a disclosure form when they’re invited to interview. If you decide to do this you should let applicants know that they will be asked to disclose if shortlisted and explain what will happen – will the disclosure be discussed at interview, or afterwards? If the intention is to retain the disclosure until after the preferred candidate is chosen, is it really necessary to ask before then?
Asking at interview
Asking applicants about their criminal record at interview can give both them and you the opportunity to discuss the circumstances surrounding their record. If an applicant wishes to put their past forward as a positive part of their application, the interview environment should encourage this. Questions can be posed verbally, or applicants could be asked to bring a written statement along with them to discuss. If the interviewer/s are not responsible for the hiring decision, it’s probably not the right time to have the discussion.
If you do decide to make disclosure part of the interview, remember that questions on disclosure draw away time from questions about skills and experience. It is difficult to isolate a discussion about an applicant’s criminal record and ensure it doesn’t affect the judgement of the individual’s abilities and staff should receive training and guidance on conducting this part of the interview effectively. We recommend saving disclosure until the end of the interview.
I have a very old conviction dating back over 20 years. Because of the sentence I received, it will never be spent. Over the years, I know I’ve missed out on loads of jobs because I’ve had to tick the box on the application form. This is despite the fact that I only have one conviction from when I was a teenager and since then I’ve got a degree, had a family and completely changed my life. Recently, I came across a job where the company didn’t ask on their form – although they did say they would ask for a disclosure to whoever was successful. I knew I would be a strong applicant, so this gave me the confidence to apply. When I was offered the job, I was told it was dependent on a few things, including if I had a criminal record. I sat down and spoke with them and once they listened to what I had to say, they went away, came back and said they were happy to still employ me. 6 months on, I’m loving my job and so thankful that they took such an inclusive approach. I wouldn’t have applied otherwise.
More information
- There is more information about asking about criminal records here
- See our suggestions on how to word questions about criminal records
- Find out more about banning the box from Business in the Community
- For further information or advice contact us.
