What does the law say about disclosing criminal records when applying for jobs?
The Rehabilitation of Offenders Act 1974 allows most convictions (and cautions) to be considered spent after a specified period of time. Once a caution or conviction is spent the person is considered rehabilitated and the ROA treats the person as if they had never committed an offence. This means that jobseekers with criminal records have the right to legally withhold such information from a prospective employer when applying for most jobs. The specified period of time is determined by the sentence or disposal that was received in respect of a particular offence.
Please see our guide to the Rehabilitation of Offenders Act 1974 for full details of how long it takes for convictions to be spent. We also have an easily accessible list of rehabilitation periods on our Spent? poster:
Spent conviction poster (47KB)
Can I ask applicants to disclose their criminal record?
Yes, but the question you should ask will depend on the job that you are recruiting for.
All employers are entitled to ask applicants to disclose details of any convictions which are not yet spent (i.e. unspent) under the terms of the Rehabilitation of Offenders Act 1974 (as amended in 2013). If you are recruiting for a job that is covered by the ROA, you should use the wording on this sample criminal record declaration form.
Criminal record declaration form template – ROA (37 KB)
If you are recruiting for positions which are exempt from the ROA, you are entitled to ask for details of any convictions, cautions, final warnings and reprimands which are not protected (i.e. eligible for filtering). You are entitled to take this information into account when deciding on the individual’s suitability for the role applied for.
Please note that the rules about filtering will change on 28 November 2020. We will be updating our guidance, including the following sample declaration form, in line with changes.
For a full list of exempt posts which are subject to enhanced checks, please see here. For a list of exempt posts subject to standard checks, please see here. If you are recruiting for a job that is exempt, you should use this wording on this sample criminal record declaration form.
Criminal record declaration form template – exempt positions (37 KB)
How should I word the criminal record declaration form?
This is very important because, if you fail to ensure that your recruitment forms and online portals are in line with legal requirements, you could face an applicant pursuing a civil claim, or prosecution by the Information Commissioner’s Office.
If you are recruiting for a post that is covered by the ROA, you can use this sample form.
If you are recruiting for a post that is exempt from the ROA, you can use this sample form (although please note that this form will be update on shortly due to changes in legislation that will be implemented on 28 November 2020).
When should I ask applicants to make a criminal record declaration?
If you are going to ask applicants to declare their criminal record, you should do this in a way that encourages honesty. It is good practice to inform prospective applicants from the outset exactly what information will be requested from them and why, and at which stage of the application this information will be requested. The emphasis should be that the information will be used only to inform the overall assessment as to their suitability for the role, where it is relevant. Providing this information will help prospective applicants decide whether they would like to apply or not.
To determine when you should ask applicants to make a criminal record declaration, you need to think carefully about why you are asking for this information in the first place. You also need to consider exactly what information you will need in order to help you assess whether the criminal record is relevant to the role applied for and whether the applicant is suitable for the role. This will help you decide which stage of your recruitment process would be the most appropriate to get the information that you need.
Nacro was a founding member of Business in the Community’s (BITC) Ban the Box campaign which called on employers to ask the right questions about criminal records at the appropriate stage of the recruitment process. We recognise that the appropriate stage will not be the same for every employer, but there are some general principles that we would encourage you to take on board when making your decision about when you might ask for a criminal record declaration.
Ideally, you should avoid requesting criminal record information during the initial application stage of recruitment (i.e. the application form or online portal). This will ensure that you first assess an applicant’s suitability based on their skills, merits and experience. A simple yes/no declaration on an application form serves no helpful purpose as it will not give any information as to the context or circumstances of the offences which is necessary to inform your risk assessment.
Criminal record information is personal, sensitive data and therefore subject to data protection laws and regulations. It is difficult to justify the collection of criminal record data from all applicants when some may not even meet the requirements for the role. For further advice about data protection considerations, please see here.
How should applicants make a criminal record declaration?
It is important that you give the applicant the opportunity to put their offence/s into context, to explain the circumstances and – most importantly – to provide you with reassurances of how their circumstances and attitudes towards their offences have changed. This information is far more useful when determining whether the criminal record is relevant to your recruitment decision and will help to inform your risk assessment. There is often not enough room on an application form to gather this information, but you can adapt your application forms, online portals, recruitment policies and procedures to ensure that you do not inadvertently discriminate against applicants who make a declaration. Please see our sample criminal record declaration forms above, which you can adapt to suit the needs of your organisation.
Ideally, you should request a criminal record declaration in writing, in the form of a disclosure statement. This is useful as it serves as evidence of exactly what the applicant disclosed when applying and may be held on the applicant’s file (if they are successful). You can direct applicants to Nacro to get support with drafting a disclosure statement.
Some applicants may prefer to disclose information verbally. There is no great advantage to you or to the applicant in requesting a verbal disclosure during an interview, particularly if your interview panel will not be carrying out a risk assessment on the criminal record information. Any verbal disclosures should ideally be made directly to the people within your organisation who are responsible for doing the risk assessment, as it is important that they are fully aware of the context, circumstances and reassurances from the applicant. Information is easily lost or misrepresented when passed on through third parties. If criminal record information is discussed verbally, it’s a good idea to record exactly what is said, and keep this stored securely on the applicant’s file, in order to avoid disputes further down the line.
For further advice or to find out more about our training courses for employers, contact us.