Criminal convictions, what should you worry about?

Posted on 19th December 2018

With the GDPR legislation in May there have been reviews of documentation which have bought to organisations’ attention lots of areas for improvement. One of those reviews has been recruitment. There are a lot of considerations in relation to recruitment. You are dealing with sensitive personal data for an individual who may or may not end up becoming your employee. Information has to be provided and stringent practices put in place.

Another issue that has been identified is also the number of employers requesting information in relation to criminal convictions. Even if you discount the GDPR legislation, you could still be in breach of the Rehabilitation of Offenders Act. This piece should explain some of the areas to be wary of but also hopefully dispel some of the concerns that you may have about employing an individual who has a criminal record.

 

Have they actually got a criminal record?

The Rehabilitation of Offenders Act essentially states that it is unlawful to gather information about spent convictions and cautions. I have met few employers who can tell you when a conviction would be considered spent; or that a caution is effectively spent as soon as it is issued. If employers who are asking for information in relation to criminal convictions are unsure then most employees or potential employees are likely to be also.

If you are in an industry whereby you do need to request information about criminal convictions, then please ensure that you provide enough information to the applicants so that they are able to determine what they need to tell you and what they don’t have to disclose.

 

Do you have the right to ask?

There are industries and service sectors in which it is appropriate to ask. It’s likely that if you have a need to ask you will be conducting DBS checks also.

However, Unlock, in its report, A Question of Fairness, found that “most employers have no legal obligation to ask about them and most criminal records are not relevant to most jobs”. With over 11 million people in the UK with a criminal record it is likely that some of your current employees are likely to have had some type of indiscretion in their past. And it is likely that you will encounter some more in the future.

My point is that you may not have a legal obligation to ask. If you do, then it may be that the conviction is historical and has no bearing on the type of role that they will be carrying out. So, if you don’t ask, the onus is on you as the employer. Have a robust recruitment process in place. It should establish the skills, culture fit and qualifications of the individual at this point in time. Don’t rely on historical and out of date issues to make your decision.

 

If I can ask and they have a declaration to make…

I have recently had this situation occur within a sector in which requesting the information was proportionate to the role. Essentially the employee declared that there would be an issue with the DBS check. They discussed this with us. We carried out the DBS. Then when we had all of the information we sat and discussed the situation with the employee. We took the decision that due to the honesty in declaration of the employee, the nature of the conviction and the timescale involved, we would continue to employ the individual.

The organisation carries out checks every year, so we did make it clear that if anything happened within the employment there would be a different discussion. The result is a motivated employee who is performing well in an organisation that provided the opportunity. We made a reasonable call after a reasonable process and, unsurprisingly, were in receipt of a great result!

It would have been different if the offence had of been at odds with the service being provided, yes. But we wouldn’t be in the position we are if we had not given the individual a chance at application; a chance to talk to us throughout the process; or taken the time to talk it through following the DBS check.

 

During employment

This will depend on the nature of the job and the details covered within your contract of employment.

Hopefully the contract will state that any criminal convictions obtained during employment will need to be declared to you. If you haven’t got a contract of employment in place (let us know we can help!) there is no obligation for the employee to tell you.

The action you take upon declaration, or discovery of a criminal conviction again needs to be reasonable. If the conviction has an impact on the individual’s ability to carry out the role then it would be reasonable to dismiss. It may also be that if you ‘discover’ the conviction, due to the breach of trust you can also dismiss; again a reasonable approach is required.

Don’t forget that if an individual is cautioned, the caution is spent when it is issued. So under the Rehabilitation of Offenders Act (ROA) the individual won’t need to declare it to you unless the role is exempt from the ROA.

 

To err is human

Many people make mistakes but that doesn’t necessarily make them unemployable. If you have a robust recruitment process in place that concentrates on the essential skills needed, you ensure that your documentation is in place that protects the business and its right to make a decision, and you think reasonably about the impact that the situation may have on the individuals and the business, then you should make the right decision for the right reason.

 

Hidden in that 11 million people could be your top performer. If you discount them at application you will never know! There are lots of grey areas around the thin blue line so if you’d like further advice, get in touch.

Lindsay Baker Character
Written by:
Lindsay Baker
Head of HR
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