We explore the circumstances in which employers can take an applicant’s criminal record into account when making the decision to hire them.
How do employers find out about past convictions?
All organisations are entitled to seek voluntary disclosure from applicants about their criminal record. However, there are limits to the disclosure that applicants are required to give and it can be difficult to verify that the information given is correct. It is only possible to obtain a criminal record check from the Disclosure and Barring Service (“DBS”) if the role that is being applied for is covered by the Exceptions Order (see below).
Previously employers sometimes obtained details of applicants’ criminal history by requiring them to obtain copies of their records from the DBS by way of a subject access request. This is referred to as enforced subject access and is now a criminal offence under the Data Protection Act 1998.
Whether the applicant is obliged to provide information about prior convictions will depend on the nature of the role applied for and whether any conviction is spent or unspent.
Under the Rehabilitation of Offenders Act 1974 (the “Act”) a conviction will become spent if the individual does not reoffend within the rehabilitation period set out in the Act (which varies with the nature of the offence). If the individual has been given a custodial sentence of more than 4 years or has been convicted of certain sexual and violent offences their conviction will never become spent.
In the majority of cases, employees do not have to disclose spent convictions and the Act prohibits employers from turning down an applicant for employment because they have a spent conviction or because they have failed to disclose one. There are, however, a number of roles that are excepted from this rule. 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. The full list of exceptions are set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended) (“the Exceptions Order”).
If a role falls within the Exceptions Order, a person may be asked if they have any spent convictions provided that they are asked in order to assess their suitability for the role. In these circumstances employers can turn an individual down for employment if they fail to answer or it transpires (following a DBS check for example) that they have given untruthful or incomplete information.
What can employers do if a job applicant has a criminal record?
This will depend in part on the nature of the role applied for and the nature of the conviction. For some roles certain convictions will be an automatic bar to employment, for example someone who is on a barred list is prohibited from working with children or vulnerable adults. In other industries such as financial services it will be a matter for the relevant regulator as to whether an individual can be employed in certain roles.
Where there are no industry specific requirements or guidelines, employers should consider all of the circumstances before making a decision as to whether the individual should be employed. This can include looking at the seriousness of the offence and whether it is relevant to the position in question. Employers should also look at the length of time since the offence was committed and what has happened in the applicant’s life since then.
However, there are no penalties set down in the Act or the Exceptions Order for dismissing someone or turning them down for employment for having or failing to disclose a conviction. Individuals will therefore need to rely on the standard provisions relating to unfair dismissal, but would need to have the two years’ service to be eligible to bring a claim. This means that job applicants are generally left with no recourse unless 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, but the remedy that they could hope to obtain from this will be limited.
Should you take a criminal record into account?
Absent a legal or regulatory requirement, it may be worth employers considering if it is really necessary for them to know about their employees’ past.
Virgin Trains have recently launched a ‘toolkit’ to encourage other employers to hire ex-offenders (and to provide advice on how to go about it) based on its own, positive, experiences of actively hiring from that group. They have also revealed that they do not ask job applicants about their criminal history unless the nature of the role requires them to do so.
There can also be clear societal benefits to giving individuals the chance to start afresh and employment has a clear effect on rates of re-offending (18% for those in employment as opposed to 43% for those not in employment according to one study by the Ministry of Justice). Timpsons famously also actively recruit ex-offenders and also claim very low re-offending rates for those on their programme.
The experience of these organisations (among others) suggests that employers may find that they are missing out on a valuable talent pool and a chance to do some good if they take too blinkered a view in relation to ex-offenders.