A recent study, conducted for the Scottish Centre for Crime and Justice, found that 11 million people in the UK have a criminal record and that 75% of employers admit to rejecting a job applicant once a criminal conviction is disclosed (Skills for Care, 2018).
The research suggests that a person with a criminal conviction that is several years old is no more likely to commit an offence than a person without a criminal record (The Scottish Centre for Crime and Justice Research, 2019). On this basis, employers are being urged to stop requesting disclosure, via an application form, of any criminal record. The aim is to reduce the number of people who are rejected before their application has been properly considered.
The suggestion that employers should ask about convictions at a later stage in the recruitment process has been welcomed by Ban the Box campaigners. This group seeks to remove the tick box regarding criminal convictions from application forms, arguing that employers are better able to consider a prospective employee's prior convictions later in the recruitment state. The campaign has already had some success in the UK, including the removal of the tick box on civil service job applications in 2016.
With this recommendation in mind, and the increasing momentum of campaigns such as Ban the Box, what is the law surrounding employees with criminal records, and what can employers do to ensure that they are asking the right questions at the right time?
The law
It's important to note that an employer can obtain information on a person's criminal record in one of two ways. The first is simply by asking the candidate or employee directly, relying on them to volunteer the information. The second way is by requesting an official criminal record check by the Disclosure and Barring Service (DBS).
The treatment of individuals with criminal records is set out in the Rehabilitation of Offenders Act (1974). This Act provides a system for the records of people with convictions to be cleared. It does this by setting out periods following a sentence where a conviction is deemed ‘spent’ and the person rehabilitated.
Subject to certain exemptions, which are discussed below, a person whose conviction is spent is entitled to hold themselves out as a having a clean record. The general position is therefore that only ‘unspent’ convictions need to be disclosed. However, even with unspent convictions, it is worth bearing in mind for those relying on voluntary disclosure alone, that an applicant may not choose to disclose this information.
If an individual has a spent conviction and they choose not to disclose it when questioned, subject to certain exemptions, they cannot be subjected to any liability or prejudice for their failure to disclose, and this would include an employer not hiring them. Failure to disclose a spent conviction is not a lawful ground for dismissal or exclusion from office, and so an employee dismissed on these grounds may bring a claim for unfair dismissal.
The Rehabilitation of Offenders Act (1974) (Exceptions) Order 1975 identifies that, in certain cases, spent convictions should be disclosed. The Order sets out certain occupations, offices and professions where the disclosure of spent convictions can be required. Those occupations, professions and offices broadly fit into five categories, a number of which will clearly apply to those working in the medical aesthetics profession:
A person can be asked about their spent convictions under the Exceptions Order as long as the question is for the purposes of assessing suitability for a role. At the time of asking, it should be made clear to the applicant that they are obliged to disclose spent convictions. If an applicant fails to disclose a spent conviction in these circumstances, an employer will have a valid reason for withholding or withdrawing an offer of employment or dismissal.
Disclosure and Barring Service
As mentioned earlier, an alternative to asking an employee about their past is for an employer to obtain information on an individual's criminal record via a DBS check, which will include all spent and unspent convictions and avoids the need to rely solely on an individual's voluntary disclosure.
There are two main types of DBS check, standard disclosure and enhanced disclosure. Employers should remember when considering requesting a DBS check that this can only be requested if the individual in question is to undertake a role set out in the Exceptions Order.
That said, if the role is not one set out in the Exceptions Order, there is now the option (since March 2014) for an individual to request a basic certificate from the DBS that includes details of unspent convictions and cautions. However, an employer cannot force an employee to make a subject access request under the Data Protection Act to get this information.
If a DBS certificate discloses convictions, employers should be careful not to respond in a knee-jerk manner when deciding if the individual is suitable for a role. Recent case law and an outstanding appeal to the Supreme Court concerning the filtering of convictions and cautions on a DBS certificate makes this point quite clear. Employers should always consider any specific sector guidance when reviewing DBS certificates and exercise independent judgement in considering what weight to attach to any disclosed conviction or caution.
Information on a person's criminal record is personal data and cannot be processed unless there is a lawful basis for doing so. As well as having a lawful reason for processing the data, an employer should also comply with the data protection principles, which includes making sure the processing is adequate, relevant and not excessive.
An applicant has a criminal record
If a conviction, spent or unspent, is disclosed an employer's response should depend on the individual circumstances—regardless of how the information is obtained.
If the conviction is spent and the position applied for does not fall under the Exceptions Order, the employer may not refuse to employ the individual on the basis of the conviction.
If the conviction is spent, but the position falls under the Exceptions Order, then an employer may refuse to employ the individual. When dealing with positions that fall within the Exceptions Order, due regard should be given to industry- and sector-specific guidance, as this will often set out how an employer should proceed. If there is no sector specific guidance, then an employer should use their own judgement in deciding how to proceed.
If the conviction is not spent, the employer may refuse to employ the individual; but again, appropriate regard should be given to any sector-specific legislation.
A current employee did not disclose
As before, an employee is entitled to withhold a spent conviction, subject to the exceptions, and it is likely that if an employee with qualifying service is dismissed for this reason, the dismissal will be unfair. This was the case in Property Guards Ltd v Taylor and Kershaw (1982), where the dismissal of a security guard for failing to disclose a spent conviction was held unfair.
If a person has deceived their employer about a criminal record and they were not entitled to withhold the information, i.e they have an unspent conviction or the exceptions to the Rehabilitation of Offenders Act (1974) apply, then the employer may terminate their employment contract for breaching the implied term of mutual trust and confidence. Care should be taken where an employee has sufficient qualifying service to bring an unfair dismissal claim, as an employer will need to show that dismissal was within the band of reasonable responses. In considering this, an employer will want to think about the employee's performance record, as well as whether or not the conviction was relevant or particularly serious.
Implications
As can be seen from the recent research published, the Ban the Box campaign, and the legal considerations when requiring criminal records are disclosed, it may not always be appropriate for an employer to ask applicants about potential criminal convictions.
Employers should, however, always remember that, in some sectors, there is a requirement to ask about criminal convictions during the recruitment process.
If an employer chooses to continue to ask for criminal records information in their application form, it should consider writing a detailed recruitment policy with a section on the recruitment of ex-offenders, which explains how the suitability of candidates with a criminal record is assessed. This could include the nature of the offence, the relevance to the role applied for, how old the offence is, and whether an individual's circumstances have changed since it was committed.
Conclusion
Employers can continue to reject applications on the basis of a criminal record without taking the steps discussed in this article. However, giving more thought to the situation may open up a wider range of suitable candidates for a role.