Employment of ex-offenders
Guidance for recruiting managers on the employment of people with criminal records
Background
Over 20% of the working age population of the UK is recorded as having a criminal record. Statistics have proven that getting a job is an essential part of rehabilitation for offenders and failure to obtain employment is a major contributing factor to reoffending.
It is important to encourage applicants to disclose any criminal history during the selection process of recruitment, to avoid complications later on. However, in order to comply with data protection requirements, this information should only be gathered once a conditional offer of employment has been made.
Employment of individuals with a criminal record will depend on the nature of the position for which they have applied and the circumstances of their offences. Recruiting departments must not discriminate unfairly against applicants because of criminal history. It is unlawful not to employ someone (or dismiss someone) simply because of a spent caution or conviction, unless an exception applies. For example, if someone is on the barred list for the children’s workforce it would not be lawful to engage them to carry out regulated activities with children, and certain criminal convictions would bar individuals from work in the legal system, or certain high level financial positions.
The Rehabilitation of Offenders Act 1974 enables the rehabilitation into employment of offenders who have not broken the law again. The Act enables some convictions, cautions, reprimands and final warnings in respect of a particular offence to be considered ‘spent’ after a specified period of time (known as the ‘rehabilitation period’), which varies according to the nature of the conviction. As such, a rehabilitated person can then be treated as if they had never been convicted of the offence and, therefore, are not required to declare any spent caution(s) or conviction(s), when applying for most jobs.
However, some exceptions may apply, for example, clinical work or particular types of work with children or other vulnerable groups would necessitate the disclosure of ‘spent’ convictions. When a conviction becomes ‘spent’, the individual is considered rehabilitated and may be treated as if they had never committed an offence. As such, the specified conviction or caution does not need to be disclosed by the individual when applying for most jobs, unless the post is subject to the exceptions of the Act.
A conviction cannot be spent if it carried a custodial sentence of 4 years or more. Lesser sentences have rehabilitation periods attached to them, and once this period has expired the conviction is regarded as spent (provided no further convictions occur within the rehabilitation period).
It is a University requirement that all applicants should be requested to disclose any unspent criminal convictions as part of the recruitment and selection process, and the online application form in CoreHR includes this request. Applicants are advised that information about unspent criminal convictions will be held on a strictly confidential basis, in compliance with the Data Protection policy. It should only be discussed with the selection panel where it is relevant to the post for which they have applied, for example, where the duties of the post require the successful candidate to undergo criminal record checks. The recruitment administrator should consider the following guidance before deciding whether it is appropriate to divulge the nature of the offence to the selection panel. Where it is appropriate to advise the panel of the details of candidate’s criminal disclosure, the panel should be provided with a copy of this guidance together with details of the offences disclosed by the candidate.
Wherever an individual declares a criminal record it is important to proceed with care. Possession of a criminal record does not automatically make an applicant unsuitable for employment with the University. The applicant’s skills, experience, and any disclosed offences against the job requirements and all potential areas of risk should be explored, identified and evaluated. Advice from the relevant HR Business Partner should be sought in any such cases.
A number of factors need to be taken into account in relation to disclosed criminal history, including the following:
- The fact that it is illegal to employ certain offenders in some occupations such as those working with children or other vulnerable groups
- The nature of the crime: for example, it is unlikely that someone convicted of a serious motoring offence would be employed as a driver
- The seriousness of the offence and its relevance to the safety of staff, students, members of the public or property
- When the offence occurred (both in terms of the age of the individual at the date of the offence and how long ago the offence occurred), its nature, and the circumstances
- Any explanation given by the individual as to the circumstances surrounding the offence
- The sentence and whether there are any patterns of re-offending; note that the longer the sentence the more seriously the courts would have been likely to view the offence
- The requirements of the post: if there is responsibility for money, items of value, and/or access to sensitive information; what might happen; how serious would it be; and what would increase or decrease the risk?
- Whether the post offers realistic opportunities to reoffend and what safeguards are in place
- What level and closeness of supervision may be required in the early stages of employment
CIPD and NACRO have published a helpful guide: Recruiting safely and fairly: a practical guide to employing ex-offenders which can be downloaded from the NACRO website.
Custodial sentences of more than 4 years can never be spent and all applicants for University posts are asked to make a full declaration of any such convictions.
Shorter sentences become spent after a fixed rehabilitation period, which is the period of the sentence, plus an additional period, which applies from the end of sentence, known as the 'buffer' period. The period during which certain convictions have to be disclosed was reduced by the Government in March 2014, as part of the changes to the Rehabilitation Act 1974, intended to reduce reoffending. A table of rehabilitation periods can be found on the Gov.uk website.
It should be noted that, where a disclosure application is made to an external agency such as the DBS the disclosure will include road traffic offences that have been recorded on the Police National Computer since 1993 and on the Criminal History System since 2001. However, offences will only be disclosed where they have resulted in a conviction, and not where they have been dealt with by payment of a fixed penalty fine. See the Government’s guidance for further information.
Information about criminal records (DBS disclosures, self-disclosures, or other vetting disclosures) should only be held by managers who have been nominated to this role by a head of department, or equivalent. To comply with legal obligations, the files must be kept securely in a lockable, non-portable storage container with strictly controlled access. Disclosure information should only be used for the specific purpose for which it was requested. For successful candidates, the information should be kept securely (as above), and should not normally be kept with standard personnel records if such records can be accessed by other staff.
Disclosed information should be kept for a further 6 months beyond the duration of employment.
For unsuccessful candidates such information should be kept for 6 months in line with all other recruitment paperwork.
Once the retention period has elapsed, in line with all personal information, disclosure information must be destroyed by secure means (such as shredding or other methods of confidential waste disposal).
