We hear frequently from employers already working with ex-offenders about the contribution they have made to their business. So why do the many people with criminal records (more than 11 million in the UK) still find it eight times harder to find a job?
There is a misconception that ex-offenders are all low-skilled, unreliable and potential troublemakers.
However, a lack of resource and confidence within HR teams to take the time to properly consider suitability for employment is also a contributory factor, and that is where businesses need to do better.
Many employers and HR managers seem to think they are legally prohibited from employing people with criminal records or legally compelled to ask about criminal convictions. For the most part, this is not the case.
If an individual’s offending has caused them to be barred from regulated activity with children and/or adults, they cannot legally be recruited to do that type of work.
Otherwise, subject to regulatory requirements/guidance, it is at the discretion of the employer to make their own recruitment decisions.
If you are a regulated business and/or employ staff which are regulated by professional or regulatory bodies, the relevant regulatory body (eg, NHS, FCA, Solicitors Regulatory Authority etc) may stipulate requirements or have policies in place advising on best practice, which should be followed.
Too many businesses are carrying out criminal record checks as a matter of course when it is neither necessary nor proportionate to the role or the risk profile of the business. All employers for all roles are entitled to ask and know about any unspent convictions and can request an applicant to apply for or provide a basic check. But just because you can, doesn’t mean you should. Businesses need to think carefully about why and if they need this information and how it will help them assess the applicant’s suitability for the role they are applying for.
Timing is also important. The Ban the Box campaign continues to call for employers to remove questions about criminal records from the initial application form or online portal, so people with convictions can at least get their foot in the door.
The implementation of GDPR last year may go some way to addressing this problem because employers routinely collecting criminal record data without a legal imperative to do so are likely to find it difficult to rely on the applicant’s consent (not freely given), or alternatively justify that they have a legitimate interest in doing so under the new legislation. We await test cases.
The biggest issue is that when information comes back that someone does have past convictions, there is often an auto-response to reject – but this is premature. At this point, there is still a decision to be made about that person’s suitability for employment.
So what should be done if an applicant’s criminal record check reveals details of past cautions and/or convictions?
There is a plethora of guidance from government (the Disclosure and Barring Service Code of Practice), regulators and social justice charities, such as Nacro and Unlock. Guidance encourages employment decisions to be made on a case-by-case basis, assessing risk in relation to the nature of the role and discussing any concerns with the applicant.
It is crucial to ensure that the decision-maker has all the relevant information to hand to make a fair and balanced decision. Applicants should be given the opportunity to put their offence(s) into context and provide reassurance of their rehabilitation and how their circumstances and attitudes have changed.
Helen Berresford at social justice charity Nacro makes the point that “at a time of multiple skills shortages, there is a real opportunity for employers to gain from the untapped talent of people with convictions.” For those businesses prepared to be more open-minded, they may just find the solution to workforce stresses in the post-Brexit years to come.Employers can contact Nacro’s Employer Advice Service via email at email@example.com, or by calling 0845 600 3194.
Susie Al-Qassab is an employment law partner at London solicitors Hodge Jones & Allen