When to ask about criminal records

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.

Roles involving regulated activity require a check of the Children’s or Adults’ Barred List (depending on the role). You can ask applicants to confirm on application that they are not barred from working with the relevant group. This will be verified by a DBS check.

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.

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.

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