With increased litigation and compliance many employers and industries who manage sensitive information or deal with vulnerable people need to ask about criminal records, however, many companies do not ask. So, for those that do, this article attempts to cover how companies can incorporate criminal records checks into their recruitment process.
There is no need for applicants to voluntarily disclose their criminal record, as employers you will need to ask.
It is common for employers to request disclosure on an application form, although this can be problematic. Often, sensitive data may be required, putting the employer in breach of data protection law and risking fines and reputational harm. Therefore, employers should only ask about criminal records when necessary and certainly not until after a conditional offer has been made.
There is no law or rule that requires employers that use DBS checks to ask about criminal records on the application form.
Many employers now defer requesting criminal records history until later in the application process allowing, the applicant to be considered at an initial stage on their skills and abilities.
Fair chance recruitment only permits asking about criminal records, when necessary, if an employer chooses to ask after a conditional offer has been made, then it means that they will have chosen the preferred candidate based on their skills and experience. (To date there is not any legal or contractual reason this cannot happen).
Criminal record information alike other pre-employment checks can be requested together.
Once a conditional offer of employment is made, suitability can then be assessed with their criminal record. Employers may then arrange a meeting to discuss questions or concerns following disclosure. If the applicant is unsuitable due to their criminal record employers can withdraw the offer as long as they:
Clearly state that the offer is conditional on being satisfied with their disclosure
Disregards information you are not legally entitled to (such as spent convictions for most jobs)
Establish a reasonable decision as to why it is justified to withdraw the offer
If it is vital that an employer needs to ask about criminal history after shortlisting, then they might consider asking applicants before making an offer, then, applicants can be sent a disclosure form when they are invited to interview. In this scenario, employers should let applicants know that they will be asked to disclose if shortlisted and clearly explain what will happen. Employers must carefully consider whether to postpone this, especially if their intention is to retain the disclosure until after the preferred candidate is chosen.
Asking applicants about their criminal record at interview can provide opportunity to discuss the circumstances surrounding their record. If an applicant wishes to provide their past convictions as a positive part of their application, the interview environment should encourage this. Questions can be posed verbally, or applicants could be asked to bring a written statement along with them to discuss. If an employer decides to make disclosure part of the interview, consider that questions about disclosure means less time for questions about skills and experience.
Information obtained at this stage may indeed form a bias, about an applicant’s criminal record above their skills and experience, therefore, staff should receive sufficient training and guidance on conducting this part of the interview effectively. Best practice is to save disclosure until the end of the interview.
At Rico HR Consultancy, we specialise in helping our clients in the recruitment of new employees, providing advice and support concerning the legalities and contractual obligations they have. If you need support, please click the button below and we will get back to you to have a chat about your company needs.
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