Earlier this week, a senior HR adviser of a large national employer contacted me. She had just completed interviews for an office-based sales role she was recruiting for and the preferred candidate had disclosed a motoring conviction. She wanted to know whether the conviction was ‘spent’ or ‘unspent’; I advised that the conviction would not become ‘spent’ until January 2017.
‘That’s a shame’, she replied. ‘He was the best candidate’.
Many employers that I speak to often assume that, because I work for a charity that supports the resettlement of offenders, I will always advocate that they should recruit people with past convictions because it’s the right thing to do. Of course I believe that people who have made bad decisions in their past should be given the opportunity to move on from their past mistakes and become productive members of society. But let me be clear: I am in the business of safe and fair recruitment, supporting employers to implement processes that are fair to applicants but also protect their businesses, staff and customers.
There is still a tendency among some recruiters to use the declaration of an ‘unspent’ conviction as proof that the applicant poses a risk to the business that is too great to manage. The HR adviser I spoke to earlier this week wanted to recruit the applicant she had called me about, but the company’s recruitment policy would not permit her to do so. Such policies imply that people with ‘unspent’ convictions are automatically unsuitable or pose a risk to the company, but – more worryingly – the inverse implication is that the applicant with no ‘unspent’ convictions is not a risk.
Let me give you a scenario.
Joe is applying to be a cashier in a bank. This role is covered by the Rehabilitation of Offenders Act 1974 (ROA), therefore the bank is entitled to ask Joe to declare only ‘unspent’ convictions. In September 2013, Joe was convicted of fraud and sentenced to six months in prison. He had built up large debts from his issues with gambling and, in a moment of desperation, stole his elderly neighbour’s credit card details to ease his cash flow problems. Under the ROA, this conviction became ‘spent’ in March 2016, so Joe is entitled to withhold these details from his prospective employer. The bank could ask Joe to apply for a basic check through Disclosure Scotland (they are not entitled to carry out a DBS check for the role of bank cashier), which would come back clear as the conviction is ‘spent’.
Isobel is also applying for the same role. In September 2012, she received a phone call to say that her father had been admitted to hospital. As she was driving to the hospital in a rush, she pulled out too quickly at a roundabout and had a minor collision with another vehicle, which resulted in her slightly scraping the other vehicle’s wing mirror. As she was desperate to get to hospital and the impact was so slight, she continued driving, but was later charged with failing to stop and report an accident. At court, the magistrate took Isobel’s mitigating circumstances into account and issued her with a £75 fine, court costs and endorsed her licence with four points. Under the ROA, this conviction will not become ‘spent’ until September 2017. At present, she has to declare it when applying for the bank cashier role and, due to the bank’s policy, she is automatically excluded from the recruitment process, despite the fact she exceeds the required skills and experience.
If you were recruiting for the cashier role, which candidate would you have greater concerns about?
I then put the question to the senior HR adviser who called earlier in the week: if you want to recruit this man because he is the best person for the job, but the fact he has an ‘unspent’ motoring conviction means that your company will not allow you to – what purpose does this tick-box exercise serve?
The ROA changed in March 2014 for the first time in 40 years. While on the whole the changes benefit people with past convictions by generally reducing the length of time they are legally obliged to disclose certain sentences or disposals, it is no longer the case that the length of time a person must disclose necessarily equates to the severity of their offence. How helpful is it to employers, therefore, to make initial recruitment decisions on whether an applicant ticks ‘yes’ or ‘no’ to this single question?
Business in the Community’s (BITC) Ban the Box campaign recently celebrated its third anniversary. Far from removing an employer’s right to ask applicants for a criminal record declaration, the campaign calls on employers to ask the right questions about criminal records at the appropriate stage of the recruitment process. Having worked with employers for many years on this issue, we fully understand the fears and concerns employers have about knowingly recruiting people with past convictions.
Over the last 14 years, it has become standard practice for employers to ask for criminal record declarations and to follow up with checks – on some occasions, unlawful DBS checks. Criminal record information can help to inform recruitment decisions but in the past there has been very little support for employers about how to understand and manage this information appropriately. Nacro’s dedicated Employer Advice Service works with HR professionals, designated safeguarding officers and in-house lawyers across all sectors, to increase their confidence to develop and implement safer recruitment policies and practices that strike a balance between the issues around safeguarding or other business risks whilst enabling ex-offenders to have equal access to employment opportunities.