Aim of this guidance
This guidance is designed to help employers word questions about criminal records appropriately. If you don’t need to ask about criminal records, you needn’t read any further. If you do need to ask, you will want to make sure you collect the right information, at the right time and in compliance with the law and best practice.
Why this is important
Most employers ask applicants about their criminal record as part of their recruitment process but knowing what and how to ask can be confusing. Frequent changes to legislation means that questions can be misleading or out of date. Asking the right question means you will collect the information you do need, while avoid collecting information you don’t need or are not legally entitled to have.
- Applicants can be unsure whether they need to disclose or not.
- People with offences that don’t need to be disclosed might be put off applying because they believe they’re being asked to disclose them.
- More information than necessary might be disclosed, running the risk that you take into account something that you’re not legally allowed to consider.
- Information which you wanted to be disclosed might not be because you didn’t make it clear that the applicant needed to disclose this
- in breach of the Rehabilitation of Offenders Act 1974 and other disclosure legislation
- In breach of the GDPR and Data Protection Act, risking prosecution by the ICO
- In breach of the DBS code of practice
- Facing a civil claim by an applicant
Step 1 – Understanding the role
The type of criminal record information you are entitled to collect depends on whether the role is covered by, or exempt from, the Rehabilitation of Offenders Act 1974 (ROA). Whether or not it is will depend on the duties and responsibilities of the post. We recommend that recruiters think about the type of role ahead of advertising so applicants can be informed of what and when they will be asked to disclose. Including this information on a job advert or recruitment pack helps demonstrate compliance with data protection law and reassures candidates with criminal records that they will be treated fairly.
- Type 1 role – a role ‘covered by the ROA’ – for this role you can ask about unspent convictions only and carry out a basic DBS check.
- Type 2 role – a role that is ‘exempt from the ROA’. For this role you can ask about unspent and most spent cautions and convictions (unless they are protected). You will be entitled to carry out a standard or enhanced/enhanced with barred list check, depending on the nature of the role.
Only those roles listed in DBS guidance could be classed as a ‘type 2 role’ (i.e. entitled to ask about both unspent and spent offences).
Step 2 – Choosing the right question
Type 1 roles (covered by the ROA)
For these roles there is no legal obligation to ask about criminal records and you should only ask if it is necessary. Remember you will have to identify a lawful basis and schedule condition to comply with the GDPR. For these roles you are only entitled to ask about unspent convictions and to carry out a basic DBS check. Asking about spent convictions, or carrying out a standard or enhanced DBS check, would be unlawful.
This example is short, simple and uses guidance to help. Technically, there are court disposals that could be unspent that are not classed as convictions, which is why the suggested guidance comes in handy.
Question – Do you have any unspent convictions? Yes/No
Additional guidance – Please tick “Yes” if you have any convictions that are not yet spent under the Rehabilitation of Offenders Act 1974. The term ‘convictions’ is used to refer to any sentence or disposal issued by a court. If all your convictions are spent, you can tick “No”. If you’re not sure if your convictions are unspent or spent, you can use a tool available at www.disclosurecalculator.org.uk or read our simple guide to the ROA.
This question is longer but technically more complete – it’s possible for conditional cautions to be unspent for a short period of time, so the term ‘offence’ is used to cover both convictions and cautions. Additional guidance below the question itself may not be necessary but applicants may need to know how to check whether their criminal record is spent.
Question – Do you have any convictions or conditional cautions which are currently unspent under the Rehabilitation of Offenders Act 1974 [You do not need to disclose anything that is ‘spent’]. Check whether your conviction or caution is spent here: www.disclosurecalculator.org.uk and read our simple guide to the ROA.
Type 2 roles (exempt from the ROA)
For these roles, you should make it clear that both unspent and spent convictions might need to be disclosed, although cautions and convictions that are ‘filtered’ (or ‘protected’) do not need to be disclosed.
This example is short and simple and supported by guidance.
Do you have any convictions or cautions that would not currently be filtered by the DBS?
Additional guidance – The term ‘convictions’ is used to refer to any sentence or disposal issued by a court. The term ‘cautions’ includes simple and conditional cautions. You do not need to disclose reprimands, final warnings or cautions accepted when under 18. You do not need to disclose anything that would be currently filtered by the Disclosure & Barring Service. If you’re not sure if your convictions or cautions are filtered, you can find out more by reading our simple guide to filtering.
This example is relatively short and simple. It could be used where there are more details provided in a separate policy document which is linked to from the question.
Do you have any convictions or cautions that would not currently be filtered by the Disclosure and Barring Service (DBS)? [You do not need to disclose anything that would be filtered by the DBS]
For some type 2 roles, there may be a need for further guidance. If the role is classed as ‘regulated activity’ and requires an enhanced plus barring check, you should make clear that individuals on the Children’s or Adults’ Barred List (depending on the role) should not apply. This can be checked as part of the DBS check later in the recruitment process.
This role involves regulated activity with children. You should not apply if you are on the Childrens’ Barred List.
and/or
This role involves regulated activity with adults. You should not apply if you are on the Adults’ Barred List.
Step 3 – Deciding how to ask
Now that you’ve worked out what question to ask, how to ask the question depends on your organisation. There are bigger questions about ‘when’ to ask, which is covered in separate guidance.
- Provide you with evidence of what information the individual disclosed to you, reducing the likelihood of disputes later on
- Provide the individual with a record of what has been disclosed
- Help you to make an initial assessment so that minor disclosures are dealt with swiftly
There are generally two options:
In the resources section, you will find templates for each of the above.
Whatever form self-disclosure takes it should be seen as the start of the process. Applicants should have the opportunity to discuss the circumstances and provide you with reassurances. It’s not possible for a written record to adequately achieve this, so it may be necessary to arrange a face-to-face discussion after receiving the written disclosure, if you have concerns about what the individual has disclosed.
See our guidance on assessing a criminal record.
Step 4 – Asking only for relevant information
The suggested questions and templates in this guidance relate to the ‘legal maximum’ that you’re allowed to ask for under disclosure legislation. However, under data protection legislation, you should only be requesting information that you believe is relevant. Under the ICO’s Employment Practices Code, you should limit the collection of information to offences that have a direct bearing on suitability for the job in question.
As a result, you can choose to go further than disclosure legislation legally requires you to.
Good practice tips
- Explain: You should make it clear why you are asking for formal disclosure of an applicant’s criminal record. For example, a formal disclosure may be the first step, and if there are any concerns, you might arrange a face-to-face discussion with the individual concerned. This can all be detailed in an ‘Applicants with a criminal record’ policy.
- Ask specific questions: If you’re only wanting to know about certain types of convictions, make this clear in the question that you ask.
- Use the right form: Make sure your recruitment process is set up to be able to issue the correct type of question for the particular role you are recruiting for.
Examples of bad practice
To illustrate why this guidance is important, we have included some examples where practice could (and should) be improved.
The question below appeared on the application form for a job at a waste disposal company.
What’s wrong with the wording above?
- It’s not clear. The role is ‘covered by the ROA’ – this means that the applicant doesn’t have to disclose spent convictions. This isn’t made clear in the question.
- It’s misleading. The use of the word “any” suggests that an applicant has to disclose a conviction, even if it is now spent.
- It’s not good practice. The ‘tick-box’ on an application form goes against good practice promoted by the Ban the Box campaign.
- It’s not helpful to the employer. There is no room to provide further details, nor is there any guidance about how to provide further details.
Having a Yes/No question, or providing the applicant with limited space to give full details of their criminal record, won’t provide you with the level of detail needed to help you to make an informed decision. That’s one of the reasons why the Ban the Box campaign is so important.
Employers that ask unclear questions, or ask for more information than they’re entitled to, could be breaching the first principle of the Data Protection Act 1998 by not processing personal data fairly and lawfully. An example of where this has happened is when the Disclosure of Barring Service were found to be asking applicants about all convictions on their own forms, even if the conviction is eligible for filtering and so didn’t need to be disclosed.
The question below appeared on the application form for a job in social care at a local authority.
What’s wrong with the above?
- It’s long and confusing. At the beginning, the phrase ‘unspent’ is used, despite the role involving a level of check that will disclose spent convictions too.
- It’s inaccurate. It states that applicants have to disclose “any convictions, cautions….”. It fails to take into account the DBS filtering process. It also asks for permission to undertake a ‘Disclosure Check of Police Records’ – such a check does not exist.
- It’s out of date. It refers to the Criminal Record Bureau, which was scrapped in 2012.
- It’s not good practice. A broad ‘tick-box’ on an application form goes against good practice promoted by the Ban the Box campaign. For this particular role, there could have been a very specific question about whether an applicant is an relevant barred lists.
