By Jackie Sinclair

in Nacro comments

10 million people in the UK have a criminal record. A minimum of 20% of the working-age population has at least one conviction. And these figures are pretty conservative. They don’t include, for example, all foreign nationals who might have an overseas criminal record that has not been recorded in the UK.

My point is that employing people with criminal records is not a diversity issue. I’m fortunate to have worked with a growing number of organisations that take a measured, sensible approach to recruiting people with past convictions. Yet time and again we hear about organisations that take a disproportionate view when it comes to recruiting people with criminal records, or dealing with existing staff who’ve had criminal allegations made against them outside of the workplace. I’ve even known people to be marched out of interviews accompanied by security guards just for declaring a conviction!

In many cases, policies and procedures seem to be created as something of an afterthought, often in response to something that has already happened, where something has already gone wrong. Surely taking steps to prevent unsuitable people from being recruited in the first place makes more sense? Making poor recruitment decisions comes at a cost for organisations and the cost is not always financial.

Here are some of the most common mistakes that organisations make:

1. Eliminating risk by not hiring people with criminal records.

Firstly, risk cannot be eliminated. It can be assessed, managed and reviewed, but it cannot be completely eradicated. Secondly – a criminal record is simply one source of information. It may be an important source, but if you use the declaration of a criminal record as your main method of assessing risk and suitability, you could leave your organisation vulnerable to abuse from somebody with no criminal record whatsoever.

2. Using the declaration of an unspent conviction as a recruitment filtering method.

I have covered this point in more detail in a previous blog. Quite simply, it is not necessarily the case that the length of time it takes for a conviction to be spent equates to the severity of the offence. Imagine that you are recruiting for the post of a cashier at a large, multinational bank. Take a look at this scenario

3. Excluding people who have been convicted of certain types of offences.

Some organisations do not necessarily exclude everyone who makes a criminal record declaration, but they do exclude those who have been convicted of certain types of offences (e.g. assault, offences against people etc.). In these cases, employers will use offence categories to decide whether or not to exclude someone. Offence categories are broad and cover a range of behaviour which can vary in terms of seriousness.

Take Mary*, for example. Mary was convicted of child abduction. Her daughter’s marriage was breaking down and her son-in-law was threatening to take their child (Mary’s grandchild) away to Australia. Mary took her granddaughter to her home for two days to encourage the couple to reconcile their differences. She was charged with child abduction and received a conditional discharge. Although a conditional discharge is an extremely minor disposal, Mary still has a conviction for an offence against a child. Does this automatically make her unsuitable for certain types of work?

4. Relying on sentencing information to determine the severity of an offence.

The sentence that a person may receive in respect of a conviction can give some indication of how serious an offence might have been. However, it’s important to bear in mind that sentencing practices vary across the UK and can be influenced by a number of factors, including:

Negotiation: an informer might agree to testify against another in return for a less serious sentence than they might have ordinarily received.

Political priorities: many will remember Tony Blair’s mid-nineties, pre-election sound bite ‘tough on crime, tough on the causes of crime’. During Labour’s governance from 1997 to 2007, it’s estimated that nearly 50 Acts of Parliament were passed relating to crime, disorder, policing, criminal justice and punishment, many affecting the sentences for particular types of offending (e.g. mandatory prison sentences for knife crime).

Public profile of case: there’s no better example of this than the 2011 riots, which saw a large number of people – many not previously known to the police – being handed disproportionately large prison sentences as a deterrent to future prospective rioters.

Relying too heavily on limited information, such as offence categories and sentences, without taking other information into account means that you could be inadvertently restricting your pool of potentially suitable candidates.

5. Requesting information they are not legally entitled to.

There have been a number of changes to criminal record disclosure legislation over the last few years, with more to follow on 10 March when enforced subject access by organisations becomes a criminal offence. The law is complex and widely misinterpreted; it is not surprising that organisations struggle to understand exactly what information they are entitled to. To arrange training on understanding what criminal record information can be requested, please see here.

In the last year, we have received over 250 enquiries to our helpline about unlawful requests for DBS certificates. Our advocacy service has represented a number of individuals who have been dismissed as a result of organisations acting on criminal record information they are not legally entitled to. This can leave organisations vulnerable to civil claims being made against them for breaching data protection laws.

6. Failing to do the basics well.

Many of the high-profile cases of abuse in positions of trust which have influenced organisations’ risk aversion to recruiting people with criminal records were committed by individuals that had no previous convictions: Jason Dabbs; Ian Huntley; Vanessa George; Nigel Leat; Jimmy Savile; Rolf Harris; Stuart Hall to name a few. Doing criminal record checks would have told recruiters nothing. They would not have prevented the subsequent abuse that took place.

The inquiries that have followed these cases have established that abuse in positions of trust has happened where there have been significant failings to implement basic procedures. Cutting corners in recruiting safely, having no system in place that allows for concerns to be raised or failing to act on those that are raised, a lack of professional supervision and management failures are all factors that crop up time and time again.

If you would like to know more about how Nacro can help your organisation with safer recruitment and risk assessment, please see here.

Look out for my blog next week which examines where things went wrong for one particular organisation.

*Names have been changed to protect confidentiality.