On 28 November 2020, changes to the Disclosure and Barring Service (DBS) filtering rules came into effect, to remove the ‘multiple convictions rule’ and prevent the disclosure of youth cautions.
Filtering rules exclude certain information about minor criminal offences from DBS certificates. These are termed ‘protected cautions’ or ‘protected convictions’. Under the previous filtering functions, the ‘multiple convictions rule’ applied, in that a caution or conviction could not be ‘protected’ where the individual had committed more than one offence. With the update, multiple cautions or convictions will no longer be automatically disclosed in a DBS certificate. In addition, youth cautions are now always ‘protected’.
This update put us in mind of questions frequently raised by employers about recruiting people with criminal records, so this month’s blog will look at the considerations of doing just that.
The Rehabilitation of Offenders Act 1974
Convictions (given by a court) or cautions (given by the police), are ‘spent’ (the rehabilitation period for the offence has ended) or ‘unspent’ (the rehabilitation period for the offence is still live). For convictions that are ‘spent’ an individual does not need to tell a prospective employer about them unless the role requires a standard or enhanced criminal records check (e.g. for working with children or an accountant).
The Rehabilitation of Offenders Act 1974 entitles employers to take into account ‘unspent’ convictions when considering a person’s application for a role. There are no legal or insurance barriers to employing someone with an unspent conviction, and unless the conviction resulted in the individual being barred from roles that involve working with children or vulnerable groups (which are exempt from the Act), employing them is at the discretion of the employer.
The Act also gives people with ‘spent’ convictions and cautions the right not to disclose them when they apply for most jobs. For most roles, it is unlawful to refuse an applicant employment solely on the basis of a spent conviction.
Considerations To Be Made
Beyond looking at skills, qualifications and experience, when considering an application from an individual with a conviction (where declared), it is worthwhile asking pertinent questions as to whether the conviction could have any bearing on the suitability of the applicant:
– Does the role involve contact with children or vulnerable groups?
– Is the role supervised, or carried out in isolation?
– Does the role involve responsibility for finances or high value items?
– Does the role present opportunities for re-offending?
– Are there safeguards that could be put in place to mitigate risks?
Further consideration may be given towards the nature of the offence, the circumstances at the time, any changes to circumstances since, its seriousness and its relevance to the role applied for, as well as the age of the applicant at the time of the offence and any pattern of offending before or since (if applicable).
When Details Don’t Match Up
Employers sometimes experience issues where the information declared at interview does not match the information disclosed by a criminal record check.
It is the responsibility of the employer to request the information they need. Whether spent or unspent, an applicant is not legally bound to disclose any criminal record information if they are not directly asked to do so. An employer should therefore not penalise the applicant later on in the recruitment process for not disclosing the information voluntarily at the start – although you may wish to consider updating your application process to incorporate the need to declare an applicable criminal record, if it doesn’t already include this.
If there are significant discrepancies, the employer should request a meeting with the applicant to find out more. Employers should not immediately assume that an applicant is trying to hide something. It may be that the applicant was unsure of the ‘spent’ period, a lack of clarity in the employer’s questions, or being unaware that they even had a conviction (this can happen when a conviction is handed down by a court in the defendant’s absence. For example, someone fails to pay their TV licence bill and respond to resulting court papers, due to having moved addresses and forwarding details having not being obtained by the relevant organisations).
Mitigate Potential Risks
All organisations are accustomed to the need to carry out appropriate risk assessments – the process of identifying any potential hazards to employees and visitors in the workplace. The type of risks being assessed are not isolated to hazards that can pose physical harm, however. They also apply to financial, security, organisational and intellectual risks to the company through the potential for improper activity, as well as the potential for mental and emotional harm to come to those working within it.
Prior to carrying out risk assessments, employers should gather as much information from the prospective employee regarding the convictions and/or cautions as possible, ideally in a face-to-face meeting with the applicant. They should be made aware that the information received in the meeting is likely to form the content of a future risk assessment.
The risk assessment, which should be a documented process signed by those undertaking it, will identify any potential risks to employing an applicant with a conviction, and will inform as to whether safeguards need to be put in place. If the applicant is successful, the risk assessment should be stored in their personnel file and reviewed regularly, or as appropriate. (Note: Plans to store any such information should be made clear within the company policy/privacy statement/consent, and employees have the right to ask to see their files under the Data Protection Act 2018).
(If you require assistance with the criminal record risk assessment processes, please do not hesitate to contact us).
Instill Confidence on Both Sides
Having a conviction can be a source of embarrassment or anxiety for some, so meetings/interviews should be conducted with sensitivity. They should give the applicant confidence that their conviction will not necessarily count against them. Always remember that it is not the job of the employer to judge whether the police’ or the court’s decision was right, wrong, justified or unfair. The employer’s job is to make sure all necessary information is gathered to ascertain whether the applicant is suitable for the role or not.
Some employers feel a sense of trepidation at the thought of employing someone with a conviction, but many recruit people with criminal records and report very positive experiences. Having excellent processes, robust risk assessment procedures and a willingness and ability to put safeguards in place wherever needed can provide peace of mind for both the employer and the applicant. Such processes and procedures should be best practice anyway as not everyone with a conviction will be required to declare it, as mentioned above.
Outside of the understandably very sensitive area of working with children and vulnerable groups and finance, there are little to no barriers to employing people with convictions, but it can require a little more work and/or consideration. While the skills, qualifications, experience and circumstances of a conviction are important to note, focusing on the feelings, attitudes and aspirations of the applicant are just as important, as not everyone’s past is a perfect indication of their future.