Is it time to give ex-offenders a break?

As the government encourages more organisations to hire ex-offenders, legal expert Clare Gilroy-Scott explores the legalities of recruiting those with criminal convictions

A December 2016 parliamentary Work and Pensions Committee report, Support for ex-offenders, has suggested that employers should be offered tax incentives – specifically a reduction in national insurance contributions (NICs) – for actively recruiting ex-offenders, who the committee describe as an ‘untapped’ resource.

Despite this, more than 50 per cent of businesses surveyed by YouGov for the report stated that they would not consider hiring an ex-offender. Highlighted are assumptions made around perceived risk to security and prevention of harm, concerns that ex-offenders lack honesty and reliability, and the potential damage to the image of the business. In fact, organisations such as Timpson report that their recruits tend to be loyal, hard working, and grateful for the opportunity.

The report appreciates that it will be necessary to change employer attitudes and possible misconceptions. As well as suggesting a tax incentive, the report recommends support and guidance for employers including information on spent and unspent convictions. Emphasis is on how recruitment of ex-offenders can give the business a chance to ‘give something back’ – a corporate social responsibility programme that could in fact be of benefit to the business in terms of local PR and recognition.

An international campaign, Ban the Box, invites employers to remove the criminal records declarations from initial job applications, except where disclosures are required for safeguarding reasons relating to the role and involvement with vulnerable people.

What are the current rules about criminal records checks on potential employees?

Employers can obtain information about criminal record history by requesting voluntary disclosure by the employee or by carrying out official checks through the Disclosure and Barring Service (DBS). There is no prohibition on such requests by an employer but there are limitations on both the obligation of individuals to provide such information and the extent to which an employer can use the information it obtains in making certain decisions.

The Rehabilitation of Offenders Act 1974 (ROA) provides that an offender convicted of an offence who does not re-offend in a specified period (depending upon the nature of the offence) is rehabilitated and the original conviction described as ‘spent’. The ex-offender is able to say that they have a clean record. Prison sentences of more than four years never become spent. Broadly speaking, only unspent convictions should be disclosed although there are specific exceptions which are set out in the ROA ‘Exceptions Order’ and relate to excepted occupations, offices and professions such as health practitioners, lawyers, accountants and those providing care services to vulnerable adults or working with children.

The majority of spent convictions do not need to be disclosed by the individual, even where the employer (or potential employer) makes a request. The individual should not be subjected to a liability or prejudiced by failing to disclose a spent conviction. Dismissal on the grounds of a failure to disclose will not be lawful.

Good practice in recruitment

The individual’s right to a private life under the Human Rights Act 1998 will also come into play. Organisations should consider the following in relation to criminal records disclosures:

  • Is the nature of the conviction relevant to the role?

  • How serious was the offence?

  • How long ago was it and was there a pattern?

  • Have the individual’s circumstances changed?

  • What explanation has been offered?

Clare Gilroy-Scott is a partner in the employment team at Goodman Derrick LLP