One in five employers ‘break the law when asking candidates about criminal records’

‘Confusion’ and ‘inconsistency’ over ex-offenders risks GDPR breach and has ‘chilling effect’ on talent

One in five employers have asked about criminal records in a potentially unlawful or misleading way, research published today has revealed. 

Unlock, a charity for people with convictions, found 22 per cent of businesses still asked questions which risked breaching the Rehabilitation of Offenders Act (ROA) and General Data Protection Regulation (GDPR). 

Its report, A question of fairness, found almost three quarters (70 per cent) of 80 large, national employers asked about criminal records on their application forms. Of those, 80 per cent provided no guidance to applicants on when a conviction becomes spent. 

The report said this lack of guidance and misleading questions “expose an employer to the risk of asking for information they are not entitled to, and of putting off qualified applicants who believe they are being asked to disclose something they should not have to.”

Under the ROA, it is unlawful to gather information about spent convictions and cautions. Many of those surveyed asked about cautions, which firms are not legally entitled to enquire about as they are spent immediately.

In addition, asking for information employers are legally obliged to ignore – such as very specific data on certain offences – is considered excessive data collection and may be in breach of the GDPR and the Data Protection Act 2018.

The Ban the Box campaign, led by Business in the Community (BITC) in conjunction with Unlock, calls for the removal of the tick box on application forms to give offenders “a fair chance to compete for jobs.” In June, the government contested a May 2017 Court of Appeal ruling which held criminal record checks could be against human rights

According to Unlock statistics, more than 11 million people in the UK currently have a criminal record. 

Jessica Rose, manager of the campaign at BITC, said: “Unlock’s work to unearth the recruitment practices of some of the country’s biggest private sector employers paints a stark picture of confusion and inconsistency when it comes to managing risk around criminal convictions.”

Claire Williams, inclusion and diversity director at Inclusive Employers, agreed, adding: “The research paints a worrying picture of sloppy processes that are not tied into clear business objectives.

“Clearly, for some roles it is essential that checks are robustly conducted and we all know and understand the reasons for this. However, with such a high proportion of the working age population actually having a conviction of some type, employers need to ensure they are applying such checks proportionately and with focus. Otherwise, they risk losing talent.”

Asda, Superdrug and Marks & Spencer were among the employers named as being potentially in breach of the law. None of the employers surveyed provided information to applicants on why they collect criminal records data, or how long it will be retained for. Under GDPR, employers who fail to provide this information are likely to be in breach of the law.

Christopher Stacey, co-director of Unlock, said he found the results unsurprising: “Employers are asking about criminal records at application stage as a way of deselecting applicants. We know this approach has a chilling effect on talented applicants with a criminal record, many of whom never apply because they think they don’t stand a chance.

“We know that employers can often get confused by a criminal record disclosure regime which is complex and hard to navigate, so I hope that in response to this report the employers highlighted will review their approach and adopt fair, inclusive recruitment practices.”

The report recommended employers consider whether they need to ask about criminal records at all given that “most employers have no legal obligation to ask about them and most criminal records are not relevant to most jobs.” It added employers should review their approach in light of changing data protection legislation, ensure they only ask for information to which they are legally entitled and recognise the business benefits of recruiting people with convictions.

Stacey said: “Evidence from employers who do recruit people with criminal records shows that they make reliable, hardworking and loyal employees.”

Asda and Superdrug were contacted for comment but had not responded by the time of publication.

A Marks & Spencer spokesperson said: “We pride ourselves in offering opportunities to all people with all types of background and we are not biased against those with criminal records. This is seen, for example, with our employability programme Marks & Start, where we work with a number of charities including Business in the Community to support individuals into employment.”