Before a disqualified person can work in a restricted position, they will need to apply for a waiver from the Charity Commission. Your governing documents will need to allow disqualified individuals with a waiver to be take up restricted positions. If they already do, read on. If you are unsure, see our guidance on checking that governing documents allow recruitment of applicants with a waiver.
If the charity is able – and willing – to recruit disqualified applicants with a waiver, we suggest the following 3 steps:
- Identify and document restricted positions
- Develop policies and practices for recruiting to restricted positions
- Communicate your policy to applicants
1. Identify and document restricted positions
Understanding which roles the rules apply to will help you manage future recruitment and respond appropriately if a person in a restricted position becomes disqualified. Find out more information about restricted positions.
2. Have policies and practices for recruiting to restricted positions
The Charity Commission advises that:
“It is up to your charity to decide when, in its recruitment process, to ask for a declaration from an appointee or candidate about disqualification. It can be done after a preferred candidate has been identified, at the final stage of the recruitment process, and alongside other appropriate pre-appointment checks.
The important point is to get the declaration before a relevant appointment is made, so that the charity does not appoint a disqualified person.”
Before you appoint a candidate to a restricted position, you will need check whether they are disqualified. One way to do this is to ask preferred candidates to sign a declaration. You’ll need to make sure applicants are aware of the rules and where to get advice if they need it.
We recommend waiting until the preferred candidate has been identified. This is consistent with the ban the box approach to recruitment, which involves not asking about criminal records until later in the recruitment process.
We recommend using a declaration at the pre-employment stage (for senior manager positions) or pre-appointment stage (for trustees). The Charity Commission do not expect charities to conduct additional DBS checks as a result of the rules.
We have produced sample declaration forms for applicants – one for trustees and one for senior managers covered by these rules. You should have systems in place so that you make sure that people in restricted positions have not become disqualified since they were appointed. This can be done by asking them to sign a further declaration, for example annually, to confirm that they are not disqualified.
3. Communicate your approach to candidates
When recruiting for restricted positions, you will need to let disqualified applicants know whether they can apply. You should make them aware that they cannot take up the position unless they are granted a waiver.
We recommend charities include the following information in adverts and application packs for restricted positions:
[Name of charity] actively seeks to recruit people from a range of diverse backgrounds, and this includes people with criminal records. However, the Charity Commission has rules on who can and cannot be a trustee or be employed in certain senior managerial roles in charities.
These rules are known as the ‘automatic disqualification’ rules and, where they apply, they have the effect of ‘disqualifying’ that individual from being a trustee or working in certain senior managerial roles in charities. However, it is possible to apply to the Charity Commission for a waiver. There is guidance on these rules from the charity Unlock and the Charity Commission.
To ensure a fair and open recruitment process, we will only ask you about your eligibility to become a trustee after we have decided that we would like you to join the board.
Charities can help individuals who are disqualified by:
- Explaining the waiver process.
- Helping them to put together a waiver application.
- Supporting their application for a waiver – The charity may look to establish sub-committee of the board to consider the reasons an individual is disqualified and the next steps in supporting the individual’s application for a waiver.
A disqualified person cannot take up a restricted role unless or until they are granted a waiver. If a waiver is refused and an appeal is unsuccessful, charities can consider offering the person a non-restricted role. Charities should plan for the possibility that their preferred candidate may not be able to take up the post.
Read more: the waiver process