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Are you allowed to ask applicants if they have a criminal Record?

Emma O’Leary
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A new paper published by the Scottish Centre for Crime and Justice found that one in six people in the UK has a criminal record. Contributor Emma O’Leary, HR Director – ELAS.

This number is relatively shocking and if we listened to the statistics, it’s probably more than likely that someone in your workplace has, or has previously had a criminal record. As an employer, what information are you allowed to know when it comes to employee criminal records?

Some employers are unsure about what they can and can’t ask potential applicants about their criminal convictions and this is leading to lots of employers unfairly discriminating against applicants, sometimes unknowingly.

The Rehabilitation of Offenders Act 1974 allows most convictions (and cautions) to be considered spent after a specified period of time. Once a caution or conviction is spent the person is considered rehabilitated and the ROA treats the person as if they had never committed an offence. 

This means that jobseekers with criminal records have the right to legally withhold such information from a prospective employer when applying for most jobs.

Ideally, you should avoid requesting criminal record information during the initial application stage of recruitment (i.e. the application form or online portal). This will ensure that you first assess an applicant’s suitability based on their skills, merits and experience. A simple yes/no declaration on an application form serves no helpful purpose as it will not give any information as to the context or circumstances of the offences which is necessary to inform your risk assessment

According to Gov.uk applicants do not have to disclose criminal convictions if they are spent. The length of this is aligned to the crime committed. Many employers have “banned the box” – that is, removed the question about criminal records from the job application form, deferring the question until later in the application process. This allows the applicant to be considered on their merits first without prejudice.

By leaving the assessment of criminal records to this stage, it means that you should have chosen your preferred candidate based on their skills and experience. Emma O’Leary, HR Director for ELAS, explains how best to approach the situation in an interview or application process:

“A popular misconception amongst employers is that they have the right to know if any of their employees have a criminal record.  This is not the case.  In general, employers are only entitled to ask and be told if a candidate has an unspent conviction.  Under the Rehabilitation of Offenders Act 1974, convictions become spent after a period of time, depending on the nature of the offence and the conviction – although some convictions are never spent.

“However, certain roles are exempt from the Act, meaning that you are entitled to ask for details and request a DBS check.  The DBS have strict regulations on what positions are eligible for a check – such as all roles working with children and vulnerable adults, certain professional roles, like accountancy and legal services.  The level of check depends on the role and eligibility. Good practice recruitment dictates that an application should be assessed on their skills and experience, rather than their background, unless strictly relevant to the role.”

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