Practical guidance – 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 in determining when to do so.

Why this is important

  • Applicants only have to disclose their criminal record if they are asked, they do not have to voluntarily disclose. If you want to know about criminal records, you need to ask.
  • Employers often have a tick-box on their application form, but there are problems with this approach. For example, you will be collecting large amounts of sensitive data that you don’t need, potentially putting you in breach of data protection law and risking fines and repetitional harm.
  • Many employers have “banned the box” – that is, 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.
  • You should only ask about criminal records if and when you need to. This will not usually be until after a conditional offer has been made.

Case study – Ricky

Case study – David

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.”

Case study – Paul

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 convictions until being offered a job – I was judged on my merits, skills and experience first. On receiving the draft contract, it was clear that my conviction would need to be declared. I phoned the HR contact and was given the opportunity, face to face, to explain my situation. 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 very fairly treated and didn’t walk away with any ambiguous view of the employer. In essence, I was treated as a human being and was able to walk away thinking “they wanted me but they also explained why, given my specific situation, this wasn’t possible.”

Waiting until after conditional offer

A key principle of Fair Chance Recruitment is only asking about criminal records when necessary. This will usually mean removing the tick-box from application forms and deferring questions about criminal records until after a conditional job offer.

  • By leaving the assessment of criminal records to this stage, it means that you should have chosen your preferred candidate based on their skills and experience.
  • Criminal record information can be requested at the same time as wider pre-employment checks, with a conditional offer of employment being made subject to the assessment of their criminal record.
  • The applicant can be asked to provide details on a self-disclosure form, and you can then arrange a meeting to discuss these details if you have questions or concerns.

  1. Between a quarter and a third of unemployed people have a criminal record. You risk putting people off from applying by asking on the application form. This approach shows a commitment to diversity and inclusion.
  2. People from black and minority ethnic (BAME) groups are over-represented in the criminal justice system and race is a protected characteristic under the Equality Act 2010 – waiting until after conditional job offer helps to eliminate unlawful discrimination.
  3. You only need to consider the criminal record of the person you decide is the best person for the job.
  4. A risk assessment process at interview can take time. If you carry out one of these for everyone who disclosed at application, shortlist or interview stage, this would be quite a burden and take resources to properly consider.
  5. Those that are carrying out the interview may not be the same people that need to make a HR-decision based on suitability.
  6. It is the only option where you can be clear that a persons’ criminal record did not have a bearing on whether there were the best applicant based on their skills.

  1. It can be a very difficult process to disclose a criminal record.
  2. Disclosing to complete strangers, in a situation where you were never going to get the job anyway because of your skills/experience, is counter-productive.
  3. Interviews are generally the time to put yourself across in the best positive light, and that’s difficult if you also have to talk about your criminal record. Many people prefer to disclose in person, but once they know whether they’ve got a good chance of getting the job.
  4. It is the only option where the applicant can know why they didn’t get the job – whether it was because they were not the best candidate, or whether it was because of their criminal record.

What you need to make this work in practice

  • You need to be confident in your willingness to employ people with convictions, so that withdrawals of conditional offers are limited and applicants aren’t unfairly treated.
  • Interviewers must be made aware of this process, and given information on how to respond should an applicant voluntarily disclose at the interview stage without being prompted to do so.
  • You should use a criminal record self-disclosure form to obtain details from the preferred candidate. This can serve as evidence of what the applicant has disclosed, and may be held on their file if they are taken on.

Case study – Ricoh

ricoh

In order to ban the box, Ricoh carried out a review of their recruitment practices, taking into consideration their existing security policies and a desire to recruit fairly. As a result, the company revised its security policy for each role to ensure the appropriate assessment of risk is carried out, ranging from only basic employment checks for some roles to in-depth checks for others, according to customer requirements. Applicants are only asked about criminal convictions at the stage of being offered a job, allowing Ricoh to judge a candidate’s suitability for a role before taking into account any convictions.

As featured in BITC’s Ban the Box – A Practical Guide for Employers

What about other options?

We recommend that for employers that ask, they do so at conditional offer of employment. We have yet to come across a legal or contractual reason why this cannot happen. We recognise that employers often ask earlier – below we explain the problems with asking at an earlier stage.

 

Many employers continue to use tick-boxes on application forms. We support the Ban the Box campaign to bring an end to this practice, as it’s not useful to either employers or applicants.
  • 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 box on an application form will not enable 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 declare a conviction – and that’s not fair chance recruitment.
  • You need to give applicants the opportunity to provide context and circumstances about their criminal record and that means having an open discussion at an appropriate stage.
For roles that are classed as ‘regulated activity’ and involving an enhanced plus barring check, you should make sure that the individual is not on the Children’s or Adult’s Barred List (depending on the role). You can do this by asking the applicant to confirm that they are not barred from working with the relevant group. This will be verified by a DBS check.

 

After shortlisting, before interview

Applicants selected for an interview can be sent a form which is sent to them when they’re invited to interview. Criminal record information can then be dealt with separately to the main recruitment process.
  • If it’s only to be discussed if they become a preferred candidate, it’s unclear why it shouldn’t be delayed until that point in the process.
  • It is difficult to be clear to the applicant how their information will be dealt with and shared during the interview process, raising questions like “who knows?” and “should I mention it at interview or will they ask me?”.
  • If there are clear legal or regulatory reasons why it is not possible for you to recruit people with certain criminal records. However, this could instead be made clear to applicants at the application stage, and/or as part of your policy on applicants with criminal records.

 

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. Questions can be posed verbally, or applicants could be asked to bring a written statement along with them to discuss and leave with you.
  • Although we recommend a face to face disclosure discussion, an interview is already a nerve wracking time and adding more pressure may make it unnecessarily difficult.
  • Interviews tend to be time-limited. Questions on disclosure draw away time from questions about skills and abilities.
  • It is difficult to isolate a discussion about an applicant’s criminal record and ensure it doesn’t effect the judgement of the individual’s skills and abilities.
  • the interviewer/s may not be responsible for making an offer. Disclosures should be received by those responsible for making an assessment. We have separate guidance available on how to ask, which covers both written and verbal disclosures.
  • Staff managing the disclosure should receive training and guidance on conducting this discussion effectively.
  • If an applicant wishes to put their past forward as a positive part of their application, the interview environment should encourage this, but not force individuals to disclose at interview.
  • If you are unable to change your recruitment process and so, instead, you ask at the end of the interview, and only where you believe there is a strong possibility that you would like to offer the applicant a position.

Useful resources

We have guidance on how to word questions about criminal records.

Business in the Community explains ‘how to ban the box’.

Good practice tips

  1. Why ask on the form? Employers have no legal obligation to ask about criminal records on application.
  2. Base your approach on evidence: The later you leave the assessment of criminal records, the more likely you are to judge applicants on their skills first, and the less likely you are to gather information you don’t need.
  3. Be clear: Whatever stage you ask applicants about criminal records, be up-front in adverts and in your policy.

Frequently asked questions

There is no law or rule that requires employers that use DBS checks to ask about criminal records on the application form.
In short, no. So long as you (a) make it clear that the offer is conditional on being happy with their disclosure, (b) don’t take into account information you’re not legally entitled to (such as spent convictions for most jobs) and (c) come to a reasonable decision as to why it’s justified to withdraw the job offer.

This section will be added to over time, responding to the common questions we receive about this guidance.

More information

  1. There is more information about asking about criminal records here
  2. For further advice about this guidance, contact us.

Has this been useful?

Let us know if this guidance has been useful. Have you used it in your organisation? Has it helped you to change your policy or practice? Please let us know so that we can show the impact of this guidance and continue to help others.

You can let us know by:

  1. Writing a comment on this page (see below)
  2. Sending your feedback directly to us
  3. Emailing us at recruit@unlock.org.uk

 

This guidance was last updated in February 2016

Is there anything wrong with this guidance? Let us know – email recruit@unlock.org.uk

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