Can I employ someone with a criminal record?
Yes. Many employers – including those recruiting health and social care or legal professionals – employ people with criminal records and have incredibly positive experiences of doing so.
The Rehabilitation of Offenders Act 1974 (ROA) entitles all employers to take into account unspent convictions when determining whether an applicant is suitable for the role applied for. Understandably, we hear from many employers that have fears or concerns about recruiting people with unspent convictions or who believe, incorrectly, that they cannot employ someone for legal reasons or insurance purposes.
The only circumstances in which an employer may not legally recruit a person with a certain type of offending history, is where the offending history has led to the individual being barred from regulated activity with either children, adults or both. If you are recruiting for a role that is defined as regulated activity with children or adults, it is your responsibility to check the barred status of your employees and you may not employ a person who has been barred from working with the relevant group.
In all other circumstances, it is completely at the discretion of the employer to make their own recruitment decisions. If you employ professionals that are regulated by professional or regulatory bodies, you may find advice from the relevant body as to their stance on recruiting people with criminal records. In the vast majority of cases, you should find that the policy encourages the decision to be made on a case-by-case basis, assessing risk in relation to the nature of the role.
If you have any concerns about how to recruit people with criminal records fairly and safely, you can speak to us in confidence on 0845 600 3194 or email@example.com.
An applicant’s criminal record check has revealed details of past cautions and/or convictions. What should I do?
This will depend on your recruitment procedures and the point at which you carry out the criminal record check.
If the certificate simply confirms what the applicant has already disclosed and you have already taken this information into account when making the offer of employment, you should confirm the offer of employment.
If your decision to recruit an applicant depends upon approval from somebody in your HR department, or other senior staff member, you should ensure that the decision maker has all the relevant information to hand in order to make a fair and balanced decision. This may include the applicant’s initial disclosure, a disclosure statement and any other relevant information they may have provided in the interim that may inform a risk assessment.
If the certificate reveals information that you weren’t expecting or that the applicant had not previously disclosed, further consideration may be necessary.
There are discrepancies between the information provided by the applicant and the information on their criminal record check. What should I do?
Firstly, you need to consider whether you gave the applicant a reasonable opportunity to make a criminal record declaration during recruitment. The onus is on the employer to request such information; the applicant has no legal duty to disclose criminal record information if they have not been asked directly to do so. If you did not request this information earlier in the recruitment process, you should not penalise the applicant for not making a voluntary disclosure. Rather, if any concerns have arisen with the nature of the information disclosed, you should discuss these with the applicant and carry out a risk assessment.
If there are significant discrepancies between the information the applicant has provided and the criminal record information contained on the disclosure certificate, you should request a meeting with the applicant to gather further information. The DBS code of practice states that an employer should discuss any new matters (including other relevant information) revealed in the applicant’s disclosure with the applicant in the form of a meeting, before making a final recruitment decision, in order to give the applicant the opportunity to address the employer’s concerns. This same principle applies to roles which require a basic disclosure check.
Many employers are quick to assume that when an applicant has not declared a criminal record that later comes to light on a disclosure certificate it is an attempt to deceive the employer. If it is completely clear, from an early stage, that an appointment is likely to be subject to a basic, standard or enhanced disclosure check, applicants will be far less likely to conceal their records deliberately. If there has been a failure to disclose it is important to establish why.
In some cases, a discrepancy may have occurred because the applicant simply did not realise that they had a criminal record or was mistaken about the type of sentence or disposal they received due to a limited understanding of how the criminal justice system works. The changes to disclosure legislation, including the ROA and the ROA Exceptions Order, are extremely complex and many receive incorrect or outdated advice about their responsibilities to disclose. Without knowing exactly what information is contained on their criminal record beforehand, and in the absence of appropriate guidance on how to work out what information needs to be disclosed, an increasing number of applicants face getting it wrong.
In some instances, it may be clear that a particular applicant is unsuitable for the post they have applied for because of their record. However, it is important not to make these assumptions without gathering more information. In general, it will not be clear whether a person is suitable until questioned further. Therefore, it is important to carry out a risk assessment to inform your final recruitment decision.
What information should I consider when determining whether an applicant with a criminal record is suitable for the post applied for?
An assessment of the applicant’s skills, qualifications, experience and conviction circumstances should be weighed up against the risk assessment criteria for the job. To determine whether a criminal record is relevant, the information should be assessed in relation to the tasks which need to be performed and the circumstances in which the work is to be carried out. You might like to consider the following when deciding whether the offence is relevant to the post applied for:
- Does the post involve one-to-one contact with children or other vulnerable groups as employees, customers or clients?
- What level of supervision will the post-holder receive? Is it unsupervised? Does it involve working in isolation?
- Does the post involve any direct responsibility for finance or items of value?
- Does the post involve direct regular contact with the public?
- Will the nature of the job present any opportunities for the post-holder to reoffend in the course of work?
- Are there any safeguards which can be put in place to minimise any potential risks?
If a shortlisted applicant who meets the requirements of the person specification discloses a criminal record that is not related directly to the post, you should conduct a risk assessment which includes meeting with the applicant to discuss the relevance of their criminal record. On the basis of the information provided, you should take into account the following:
Nature of offence(s)
What type of offence or offences did the individual commit? i.e. theft, fraud, violence, possession of drugs, supply of drugs, sexual offences, public order or other offences. Did the offender commit one type of offence or a range of different offences?
You should consider whether the offence is relevant to the position in question. The relevant categories of offences in relation to the protection of children are generally considered to be serious, violent, sexual and drug-related offences, although the nature of the offence is not the only factor that ought to be considered. For example, a person with a previous history of drug-related convictions who has clearly moved on from that period may be particularly well-suited to support others with substance misuse problems. They should not be discounted simply on the basis that they have drug-related convictions.
For work with vulnerable adults, the relevant categories are generally considered to be violent and sexual offences. Offences of dishonesty such as fraud may be relevant if the nature of the post involves unsupervised access to money and valuables. However, even here, one should distinguish between offences. An offence of shoplifting, for instance, might not be a particular cause for concern, though an offence of theft from an individual very likely would be. Beyond these, there are a wide variety of offences that have little relevance, such as public order offences.
Drink-driving offences are not generally considered relevant unless the job itself involves driving e.g. taxi driver or a bus driver.
You should consider the seriousness of any offence or allegations disclosed. This is important because all offence categories cover a very wide range of offences that vary in terms of seriousness. A sexual offence, for instance, covers everything from young men sleeping with their underage girlfriends to indecent assault and rape. Violence covers everything from slaps and smacks, normally recorded as battery or common assault, to grievous bodily harm and murder. Drug offences cover everything from possession of small amounts of cannabis for personal use to possession of class A drugs with intent to supply. Burglary covers everything from taking goods from shop storerooms to entering the homes of elderly people, leaving them in fear. Arson ranges from setting fire to litter bins to destroying property and endangering lives.
The name of the offence (the offence code) can often make the incident sound more serious than it was; which is why it is extremely important to gain further details of what actually took place and to consider the other factors listed here.
Who was involved? What happened? Where did it happen? When did it happen? How did it happen? Why did it happen?
You should consider the circumstances and the explanation offered by the applicant. Consider whether there were any aggravating or mitigating circumstances. What was the applicant’s attitude to their offending? Did they show any remorse or take responsibility for their actions? Did they try to make reparation to any victim?
In particular, take into account the applicant’s own circumstances at the time of the offending behaviour including issues with accommodation, education, employment, management of finances and income, lifestyle and associates, relationships, drugs and alcohol, emotional well-being or health.
An explanation of the circumstances surrounding an offence will often be plausible and reassuring. For instance, the person who explains that, in fear and panic, they ended up assaulting someone who was threatening them during a bar fight, may not be as culpable as an individual who caused serious injury with intent during an armed robbery. It is important to bear in mind that only a small minority of offences take place in a work setting. You should also consider that a person convicted of a serious offence may have completely changed their life around for the better.
It is important to be aware that it is incredibly difficult for an applicant seeking to show themselves in the best possible light to a prospective employer, to have to then discuss past matters that they may feel ashamed or embarrassed about. Taking that into account, you should look for openness and honesty, rather than denial and minimisation. You should consider the applicants’ insight into their own behaviour, any indication of changed thinking, relevant changes in their circumstances and, where relevant, victim empathy rather than victim blame or shared responsibility.
Age of offences
Employers should consider the length of time that has passed since the offence that has been disclosed took place. Cautions or convictions that appear on a disclosure certificate may be very old, for example, dating back to when the person was growing up. They may not be relevant in many instances because applicants have put their past behind them.
The government recognises that people can and do put their offending behind them. This recognition is embodied in the Rehabilitation of Offenders Act 1974 (ROA) and by the introduction of the filtering system for positions subject to standard or enhanced disclosure checks. Reoffending statistics in the UK indicate that if individuals go a little more than two years without reoffending, they are no more likely to offend than those who have never offended.
Pattern of offending
Employers should consider whether the applicant committed a single offence, or whether there has been a pattern of offending behaviour or allegations. Is there a big gap between offences, or are there a number of offences within a short period? People who have a pattern of offending right up to the present date may not have put their offending behind them.
Those people with gambling, drink or drug-related convictions, in particular, may remain a risk unless there is evidence of a clear break in the pattern of their offending. Nevertheless, many offenders, including repeat offenders, do eventually give up crime and settle down. They may have a particular motivation for doing so (e.g. becoming a parent) and often there will be clear evidence shown throughout the other aspects of the recruitment process and on the disclosure certificate itself.
You should take into account whether the applicant’s circumstances have changed since the offending took place. For instance, those convicted when young, perhaps as juveniles, often do not reoffend once they have family or mortgage responsibilities, because they have too much to lose by getting into trouble. As previously mentioned, many offenders, even those with long and serious records, can eventually change, as they simply grow out of a period of offending or seek help to address related problems.
As part of the risk assessment process you should try to establish the applicant’s attitude at the time of the offence. What is their attitude now? How do they now feel about what happened? How do they feel about their part in what happened? Do they show remorse? Do they blame others? Do they feel a victim of injustice? How genuine is their expression? What efforts have they made not to reoffend? If they have one, can a reference be sought from their probation officer or support worker?
Having reviewed the circumstances at the time of the offence, you should then compare the applicant’s circumstances at the time of them applying for the role. It may be that the applicant can provide the necessary reassurance that past issues have been resolved. However, many people with more recent convictions will also have reached the point where they want to put their offending behind them and put their talents to constructive use. If the offence is not work-related, or if the post is at a level of responsibility which means that the applicant does not pose a risk, you might consider recruiting them if in all other respects they are suitable for the job.
How should I carry out a risk assessment?
Before you carry out your risk assessment, it is important that you have gathered as much information as possible to inform your assessment. Sources may include (but are not limited to) answers given during application and interview, self-declarations, disclosure certificates, disclosure statements, value-based interviewing, references and independent statements from support workers.
You should also give the applicant the opportunity to address any concerns that you may have or discrepancies. This is best done in the form of a face-to-face meeting with the applicant. It is important that you make it clear to the applicant that the purpose of the meeting is to discuss any relevant information that can inform your risk assessment. Making your reasons clear is more likely to instill confidence in the applicant that their disclosure will not necessarily count against them and will encourage them to be more open with you. Try to conduct any such meeting with sensitivity and empathy, as discussing past convictions may be a great source of anxiety and embarrassment for the person concerned.
Think carefully about the questions you plan to ask and keep the discussion focused on the individual and their feelings and attitudes. It is best not to conduct the meeting alone; if possible, invite a colleague who was involved in the recruitment process to provide support and take notes. It is also important to remember it is not your responsibility to decide whether the court’s decision or police course of action was the right or fair one. The purpose of the interview is to help you to gather the necessary information to assess whether the individual may pose a risk in the position applied for.
Once you have gathered all the relevant information, you should carry out your risk assessment and ensure that, where any risks are identified, you assess whether any appropriate safeguards can be put in place to minimise these risks. The assessment should be a documented decision-making process that is signed by those who have undertaken the assessment. If the applicant is successful in post, the risk assessment should be securely stored on their personnel file and reviewed as appropriate.
Are there examples of criminal record risk assessment forms available?
Yes. Please contact Nacro’s Employer Advice Service on 0845 600 3194 or firstname.lastname@example.org.
Do I have a duty to inform others in my organisation about an employee’s criminal record?
Your duty is to ensure that you assess and manage any risks identified in your risk assessment processes. Information about an applicant’s criminal record should not be disclosed to anyone in the organisation apart from those who have a genuine need to know. This may include people directly responsible for the decision about recruitment or the applicant’s line manager, but only if the offence is relevant to the applicant’s role and only where the line manager, for example, may be responsible for implementing any safeguards deemed necessary and appropriate to manage any identified risks.
The applicant should also be told who in the organisation knows about their record, as they need to feel confident that their personal and sensitive information will not be disclosed to anyone unless there is a specific reason for doing so.
I would like some advice about our organisation’s policy on recruiting ex-offenders/carrying out DBS checks. Who can help?
Nacro works with employers across the private, public and voluntary sectors offering expert training, consultancy and advice on all issues relating to the disclosure and management of criminal record information, safer recruitment and the retention of staff and volunteers. We are happy to review your existing policies and procedures and offer recommendations or to support you with drafting new policies that will ensure you have effective risk assessment and management systems in place, and that you are striking a balance between safeguarding and enabling ex-offenders to have equal access to paid and voluntary employment opportunities.
For further information, support or training on safe recruitment contact Nacro’s Employer Advice Service on 0845 600 3194 or email@example.com. For our events and training courses on safe recruitment, click here.