Do your job adverts warn candidates that you will carry out checks on their pasts? How confident are you that your criminal record checks are justifiable and that your process is fair?

Disclosure Barring Service Checks (previously Criminal Records Bureau Checks)

No employer would publish a job advert that contained discriminatory wording and most organisations are now aware that they need to be careful not to indirectly discriminate against protected groups when it comes to describing the requirements of a role. For example, very few job adverts specifically state that a job is 'full time only' given that this requirement could indirectly discriminate against women with childcare responsibilities and would need to be objectively justified.

Employers need to be equally cautious in relation requesting details of prior convictions and undertaking disclosure and baring service (DBS) checks for job applicants. Asking excessive information or indicating a blanket ban could indicate that the employer may be in breach of the Rehabilitation of Offenders Act 1974 and in breach of the Data Protection Act 1998 due to the misuse of sensitive personal data.

Employers need to balance the risk of harm to customers or other third parties and to their own reputation against the rights of the candidates when deciding whether it is appropriate to carry out checks on applicants.

Often checks are carried out for a role because they always have been rather than the need being considered for each position on a case by case basis.

Certain roles in regulated activities, such as education and the professions are specifically exempted, and enhanced DBS checks are required by law or industry practice but in other roles, or unregulated sectors, the situation is not so clear.

Employers in unregulated fields may ask for voluntary disclosure of unspent convictions or make an offer of employment conditional upon an employee obtaining a basic DBS certificate. An individual can apply for such basic disclosure for any role that they are applying for/working in from Disclosure Scotland (they do not have to live in Scotland to use such service).

It is important to note that unless they fall within a specific exemption applicants can only be asked to disclose to unspent convictions ie those convictions which are either serious enough or recent enough not to have been removed from an individual's record under the Rehabilitation of Offenders Act 1974. Asking for excessive information poses a risk under the Data Protection Act and has led to prosecutions (ironically of the DBS service itself when it failed to update its questionnaire in relation to spent convictions and cautions).

Our previous article considered some of the issues around criminal convictions and the recruitment process.

Difficult scenarios

There is a lack of guidance on this issue for employers and this is problematic. Businesses may naturally want to err on the side of caution to protect their customers, existing employees and other third parties. For example, if employees are going to be working in customers' houses working or alongside those who are under 18 such as work experience trainees or volunteers on a regular basis it is understandable an employer will want some comfort that there are not any live convictions.

Further information is available on the Government's website: https://www.gov.uk/government/news/use-the-dbs-website-to-answer-your-query

What if a conviction is disclosed?

In those cases where there is no sector-specific guidance or regulations an employer will need to use its independent judgement on whether or not to employ someone who has a conviction. Rather than have a zero tolerance policy we would suggest that the following factors are taken into account when deciding whether or not to employ that person:

  • How serious is the offence?
  • Is the conviction relevant to the position in question?
  • How long ago was the offence committed and have the applicant's circumstances changed since that point?
  • Is there a pattern of offending or was an offence a 'one off'?
  • What were the circumstances surrounding the offence and what explanation is offered by the individual involved?

Acting fairly

Before any advert is published stating that the role is subject to and conditional upon satisfactory DBS checks, consider the specific role and whether the checks can be justified. Record the basis for that decision so that a good reason can be shown, if challenged later on.

Employers should at least consider whether there may be better methods of assessing an applicant's suitability for a role, for example a carefully monitored probationary period.

If it is decided that checks are required prospective employees should be informed of this at the outset of the application process. To carry out the checks in the least intrusive way, it is safer to carry out the checks only on the successful candidate. You also need to provide a candidate with the opportunity to challenge and explain the outcome of the checks if an unspent conviction is revealed.

Information about a person's criminal convictions will be considered sensitive personal data under the Data Protection Act 1998 (the Act) so there will be stringent requirements about processing such data. An organisation should obtain an applicant's written consent to processing, this can be done on the application form or a separate document. The information requested should not be excessive. It should be made clear, at the application stage what checks will be carried out and for what purposes such information will be used and the candidate should have a chance to explain any information obtained.