More employers remove questions about criminal records from application forms

In 2018 research by Unlock found that 70% of well-known national employers asked about criminal records on application. Three years on, with increased understanding of data protection, the GDPR and inclusive recruitment, we reviewed those employers to see what, if anything had changed.

Key findings in 2018

The 2018 findings were disappointing, though perhaps not a surprise. The GDPR and Data Protection Act 2018 were new and their implications were not yet clear.

  • 70% of employers asked about criminal records on application
  • 80% of employers who asked provided no guidance to applicants
  • 22% of employers asked an unlawful question (for example, asking applicants about cautions or spent convictions where they were not legally entitled to)

None of the employers surveyed provided information on the reason for collecting criminal records data, or included information on storage, retention or deletion in their privacy policy. Applicants had no way of knowing what would happen to their information.

Some sectors were more advanced than others. While several large retailers asked unlawful questions, none of the construction companies and only half of the car manufacturers in our survey asked about criminal records at all.

In 2018 when we published the report we wrote to each of the 54 employers who asked questions on application. Just 13 responded. In March 2021 we reviewed each application system to see what, if anything had changed.

What’s changed?

The impact of the Covid-19 pandemic was evident – four employers were either not trading or not recruiting, so we could not review their application process. Of the remaining 50 we found that:

  • 13 employers had removed questions about criminal records from their online applications
  • 37 employers continued to ask about criminal records
  • 25% of employers that previously asked a misleading question no longer asked at all
  • 3 employers that previously asked unlawful questions had amended the question – the rest continued to ask a misleading question

It’s good news that some employers have made changes but there is more to be done.

Employers will usually need an ‘appropriate policy document’ (often referred to as a privacy policy) in place to comply with data protection legislation. The policy should explain why information is collected and how it will be used, stored and deleted. Where applicants are asked to provide criminal records information they should be told why it is necessary and how the information will be used.

Most employers we reviewed had a privacy policy linked to the application, although most of them did not even mention criminal records. One employer required applicants to agree to the privacy policy before submitting their application – but it wasn’t clear what they were agreeing to.

Sensitive information – such as bank details – is not collected at this stage, because it’s not needed. In most cases, criminal records information won’t be needed at this early stage either. Instead, employers should move the question to later in the process, ideally after a conditional offer has been made.

Inclusion and hiring the best person for the job

Employers want to hire the best person for the job and questions about criminal records can have unintended consequences – putting qualified applicants off and even discriminating against people from groups you might want to attract.

Four employers required applicants to complete lengthy suitability assessments and then went on to ask about criminal records. Around 75% of employers admit to discriminating against someone with a criminal record so this seems like a waste of the candidate’s time.

Three employers included statements on inclusion and the need to consider all applicants on their skills and abilities ahead of their background, but then asked about criminal records. Again, most employers admit to discriminating against candidates who disclose so these statements felt rather hollow. Excluding applicants with criminal records can indirectly discriminate against people with protected characteristics and a truly inclusive recruitment strategy recognises this.

Good practice

Just one employer gave the option not to disclose:

An applicant might assume that choosing not to disclose would be looked at unfavourably and some wording around that might help reassure them. However, we think this might be a good way to allow applicants some control over the information they disclose on application, for employers who not yet ready to ban the box.

Developing an inclusive approach to recruitment means considering applicants with criminal records. This can be difficult – the law is complex and there are many misconceptions about people with criminal records. Applications are the easiest place to start. Rarely is it truly necessary to ask at this stage and moving questions to later in the process is the simplest way to recruit fairly.

Almost 12 million people in England and Wales have criminal records so fair recruitment is the best way to ensure you’re recruiting from the widest pool of talent.

More information

For more information on fair recruitment, see our practical guidance on asking, assessing and checking criminal records.

For advice on your policy and practices, contact recruit@unlock.org.uk

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Rachel Tynan