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Recruitment and candidates with a criminal record

Published: Monday 15th April 2019

Legislation currently requires people with multiple convictions to disclose their criminal record when applying for a job, even if those offences happened many years ago. However, at the same time, under the Rehabilitation of Offenders Act 1974, it is unlawful for employers to take spent convictions or cautions into account when making recruiting decisions. So how should hirers approach the possibility of a criminal record when it comes to recruitment?

Man Completing Criminal Background Form

The law may be changing

Human rights group, Liberty, claims that having to disclose multiple convictions is ‘disproportionate and incompatible with rights to privacy’. In fact, the organisation took their case to court and won against the government in the High, Appeals and Supreme Courts. The result is that the law may now have to change, and, if this is indeed the case, it will be more on the onus of the recruiter to uncover a criminal record when it comes to assessing candidates.

However, given the Rehabilitation of Offenders Act, this may not be as easy as it sounds. Research by Charity, Unlock, found that when phrasing interview questions, one in five employers enquired about candidates’ criminal history in an unlawful or misleading manner. Asda, Superdrug and Marks & Spencers were all named as being potentially in breach of the law, so recruiters need to be careful. It’s also worth pointing out that under GDPR regulations, employers who fail to provide information on how they collect or retain criminal records data could be in breach of the law and fined.

Man on laptop researching employment law

Should a past criminal record even matter?

The question is, just how important is a minor offence that may have happened many years ago when it comes to selecting a candidate who may otherwise be an excellent fit for the job. This has led to Unlock’s ‘Ban the Box’ campaign. This initiative is aimed at getting rid of the tick box on application forms which forces candidates to reveal if they have a criminal record. And the campaign is already having an impact. Companies such as Boots, Barclays, The Civil Service and Virgin Trains have given their support to the initiative.

A change of thinking is needed

Currently, there are over 11 million people in the UK with a criminal record and if they were all taken out of the job market, there’d be a serious problem for companies when it comes to recruitment.

As head of recruitment agency Working Chance, Jocelyn Hillman says employers need to act with discretion when it comes to the treatment of people with convictions in the recruitment process:

‘As a society, we claim we want prison to reform people, to allow them to reintegrate into mainstream society again. Yet, if we won’t let them work because of their criminal conviction, how can we expect them to become part of mainstream society?’

Man looking sad at his laptop after feeling he was a victim of discrimination during the recruitment process

Under the Rehabilitation of Offenders act, jobseekers with criminal records have the right to legally withhold such information from a prospective employer once those convictions are considered ‘spent’. The period of time for this depends both on the offence and the sentence. However, employers can carry out a DBS check (Disclosure and Barring Service) at Gov.uk on candidates applying to certain roles, particularly if in the healthcare or childcare sectors. Childhood crimes from 30 years ago can appear via a DBS check.

In the end, it’s up to individual companies on how they develop their own policies on recruiting people who may or may not have a criminal record, but screening out a candidate for the theft of a chocolate bar 20 years ago probably doesn’t make good business sense, especially if they’re the right person for the job.

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