Recruitment of Ex-Offenders: how can you ensure you are being fair?

Should you take a criminal record into account?

Abigail Etchells, senior associate at Stevens & Bolton, looks at how employers can ensure that they are taking the right approach to the recruitment of ex-offenders.

The first point to consider is whether you need to take an applicant’s criminal history into account at all.

For some roles you have no choice but to enquire about your employee’s past.  In other cases where there is no such requirement it may be worth considering whether you really need to do so.

How can you find out about an applicant’s criminal record?

If appropriate, you can simply ask applicants if they have a criminal record.  However, there are limits to the disclosure that they are required to give, depending on the role applied for and whether any conviction is spent or unspent.

A conviction will become spent if the individual does not re-offend within the relevant rehabilitation period (which varies with the nature of the offence). Certain convictions never become spent.

In the majority of cases, applicants do not have to disclose spent convictions. However, a number of roles are excepted from this rule under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended) (“the Exceptions Order”). The most obvious is any role that involves working with children or vulnerable adults, although there are also exceptions for various regulated and professional activities.

If a role falls within the Exceptions Order, an applicant may be asked if they have any spent convictions provided that they are asked in order to assess their suitability for the particular role they have applied for. In these circumstances you can turn an individual down for employment if they fail to answer or it transpires that they have given untruthful or incomplete information.

It can be difficult to verify that the information given by way of voluntary disclosure is correct as there are limits on when criminal records checks can be carried out.

Employers sometimes used to require applicants to obtain copies of their records from the Disclosure and Barring Service (or a predecessor) by way of a subject access request. This is referred to as enforced subject access and is now a criminal offence.

So, unless the role falls within an excepted category it is unlawful to require disclosure of criminal records.

What should you consider if an applicant does have a criminal record?

Unless the role falls within the Exceptions Order you are prohibited from turning someone down for employment because they have, or fail to disclose that they have, a spent conviction.

If the role does not fall within the Exceptions Order or if the conviction is unspent you should look at whether the existence of the conviction makes the applicant unsuitable to carry out the particular role they have applied for.  In some circumstances this balancing act is (relatively) easy: for example convictions for certain offences will prohibit an individual from working with children. In certain industries the decision may be for the relevant regulator.

Where there are no clear limitations, you should consider all of the circumstances before making a decision for example:

the seriousness of the offence;

whether there has been a pattern of re-offending;

the length of time since the offence was committed;

what has happened in the applicant’s life since then; and

any explanation the applicant gives for their behaviour.

You should also consider if there are any other ways in which you can assess if an applicant is right for the role such as taking up references or checking qualifications.

What recourse does an applicant have if they feel they have been treated unfairly?

There are no penalties under the legislation for dismissing someone or turning them down for employment for having or failing to disclose a conviction.  They will also be unable to rely on the standard provisions relating to unfair dismissal as they will not have the two years’ service needed to bring a claim.

Their only recourse will be if they can show that the decision not to employ them was otherwise discriminatory i.e. someone who did not share a relevant protected characteristic would have been awarded the role despite the conviction.  They may also be able to make a complaint to the Information Commissioner in respect of misuse of personal data. The remedy that they could hope to obtain from this is currently limited, although this will change when the General Data Protection Regulations come into force in 2018.

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