Many employers want to establish whether a potential employee is honest and of good character before hiring them. Even in instances where a criminal record check is not a compulsory requirement, employers may still feel compelled to make any offer of employment conditional upon an evaluation of a candidate’s criminal history.
They may also want to be informed of any convictions that arise after someone is hired, making disclosure an important part of the recruitment and vetting process.
If you’re a hiring manager or business leader looking to employ staff, you may be wondering what you can ask applicants when it comes to convictions and cautions.
Disclosure checks you or an employer can apply for
The types of disclosure for work or volunteering are:
Basic check
Standard check
Enhanced check
Enhanced with barred list check
PVG scheme in Scotland
AccessNI in Northern Ireland
The standard and enhanced disclosures are sometimes known as 'higher level' disclosures. The type you need will depend on the circumstances of the role you are recruiting for.
What’s included on a disclosure certificate?
All disclosure certificates show a person’s name including other names they have been known by and their place and date of birth. Other information will depend on the type of disclosure that’s been applied for, but will all include unspent convictions, cautions and reprimands.
Can I ask for a criminal record check and if so, what level?
All employers can request a basic criminal record check for all employees, but it will only contain unspent convictions.
Some roles are permitted to have a higher level of check. These include jobs that are exempt from Rehabilitation of Offenders Act (ROA) 1974 legislation – including finance jobs, the legal profession and law enforcement – and would typically involve a standard check. Those roles that involve work in regulated environments, where children and vulnerable adults are present and cared for, require an enhanced check.
Standard checks will contain details of all spent and unspent convictions that haven’t been filtered due to being too old or no longer relevant, while enhanced checks will contain these plus any other information the police consider relevant to the type of work applied for. This could include current investigations and cases where there was no conviction due to insufficient evidence or the associated charges being dropped.
Barred list checks will show if a person is barred from working with either children, adults, or both. Where direct supervision of children or vulnerable adults is required, an appropriate barred list check can be requested in addition to an enhanced check. Being on the sex offenders register will not show on a DBS, although the offence that warranted the person being registered will (if unspent or a higher-level check is obtained).
In Scotland, the Protection of Vulnerable Groups (PVG) scheme is in place and applies to these roles. For more information, visit here.
What am I allowed to ask and when?
Under ROA, even though job applicants have certain protection against disclosing their spent convictions, employers are still allowed to ask all applicants to declare all unspent convictions and cautions.
However, you are only entitled to ask applicants who are working in roles that are exempt from ROA or working in regulated activity if they have spent convictions and cautions in addition to unspent ones. These applicants are obliged to declare all convictions and cautions that have not been filtered by the relevant disclosure body, including Disclosure and Barring Service (DBS), Disclosure Scotland (DS) and Access Northern Ireland, when asked.
Examples of exempt roles include those professionals working in financial services, the legal profession, law enforcement, and the security industry. Regulated roles, on the other hand, are jobs where care and support are being given to children under the age of 18 or adults who require care and support – these include teachers, teaching assistants, nursery workers, medics, and care workers.
It’s advisable to ask applicants about relevant convictions at the shortlisting stage. Requesting this information at initial application would potentially mean holding and processing sensitive data unnecessarily, something that is not allowed under GDPR.
What can I do with the information I have been given?
Any recruitment decision ultimately rests with you – the employer. We would encourage you to adopt a fair and comprehensive risk assessment process when convictions are disclosed, as opposed to just automatically rejecting an applicant.
There are a number of factors to consider which could include:
The relevance of the offence to the role
The age at the time of the offence
The time passed since the conviction
In addition to the above, any contextual information the applicant can provide as well as any evidence they can give of rehabilitation and positive change that may make reoffending less likely, will help the entire process.
To assist with the assessment process, you can ask for a statement from the applicant outlining the circumstances of the offence and detailing any positive steps taken since. Nonetheless, you can’t make a recruitment decision based on information you are not entitled to know. If an applicant, for example, mistakenly discloses information, such as not realising a conviction is spent, this information should be ignored.
Visit the government website for more information about DBS checks.
The Reed Screening team can help with all aspects of workforce management, including pre-employment checks, vetting, and advice on your options if an employee is convicted of a crime while employed by your organisation.
Reed have been Chair of the Criminal Records Trade Body (CRTB) since its inception. The CRTB is the representative industry body with the three criminal record checking agencies and works to support and advise on a range of matters including policy and process.
For more advice on asking about and assessing convictions, please visit www.unlock.org.uk.
