How to handle applicants with a criminal pastby
A criminal conviction doesn’t automatically mean someone is unable to do a good job and focusing on someone’s past can prevent you from seeing their future potential. Alan Price explains how to navigate this scenario.
Would you hire someone with a criminal past? One in three employers wouldn’t, according to nfPResearch findings.
On the Police National Computers, apparently more than 10.5 million people in the UK have a criminal conviction. But, actually, 68% of these are for minor, one-off offences.
Yet, when people with criminal convictions are applying for jobs, many have to tick a box that says so.
And, in the eyes of some employers, this marks the end of the road.
So, let’s say an applicant with a criminal past applies for a position at your company. From a HR point of view, how should you handle it?
When people with criminal convictions are applying for jobs, many have to tick a box that says so
Firstly, you should know that…
A criminal record means someone has a criminal conviction, whether it’s for a minor or serious offence. This includes cautions.
By law, you can’t refuse to hire someone because they have a ‘spent’ conviction.
In other words, some convictions have expiration dates. Meaning, after a certain amount of time, a person doesn’t have to declare them anymore.
That’s unless it’s a certain type of role that needs more than a basic DBS check, like if you work with children or in healthcare (more on that below).
Are you allowed to hire them?
You can’t refuse to hire someone because they have a spent conviction. However, there may be some jobs where you’re legally not allowed to hire them.
Let’s say, someone has a conviction for fraud. They wouldn’t be able to work in a job that involves managing someone’s money.
If someone has an ‘unspent’ conviction, they’re still in their rehabilitation period. Some convictions will never be spent.
So, if someone applies for any job with an ‘unspent’ conviction, they have a legal obligation to tell you about it if you ask.
If they don’t and you find out in the DBS check, you could reject their application or withdraw their offer.
You can’t refuse to hire someone because they have a spent conviction
Be upfront if you need to know about someone’s criminal record
You don’t have to ask applicants for criminal records and applicants don’t have to tell you about having one unless you ask.
It’s not always relevant for you to know. But sometimes it is.
There are certain roles; for example, solicitors, accountants, teachers, etc. where it is a requirement that all spent convictions be disclosed during the application processes, and applicants may be subject to a criminal record check, like a DBS check.
So, make this clear to applicants in your job advertisement. It may determine whether or not they still want to apply.
But while it’s good to give applicants a heads up, you shouldn’t start discussing criminal records until later on. Here’s why…
While it’s good to give applicants a heads up, you shouldn’t start discussing criminal records until later on
Consider skills before convictions
You should look at an applicant’s skills and qualifications first.
Considering criminal convictions at the first stage may influence your decision before you’ve had a chance to assess someone’s genuine ability.
Also think about whether you need to ask someone to reveal details about their criminal record in their application.
You should look at an applicant’s skills and qualifications first
A risky business
For starters, it’s risky. You’d be collecting bulks of sensitive information that may put you at risk of breaching data protection law.
Secondly, it’s better to save this information for a face-to-face discussion. Your applicant is likely to have limitations when trying to explain their conviction in a form.
Ask for a disclosure statement
After you’ve assessed someone’s skills and you think they’re a good candidate for the role, then, if relevant, ask about criminal records.
You can ask applicants to send you a disclosure statement in writing.
This gives them a chance to explain the details of their offence and how their circumstances have changed since. You can keep this on file as evidence.
You may also want to…
Your applicant is likely to have limitations when trying to explain their conviction in a form
You may want to address any questions or concerns you have about someone’s disclosure statement if you’ve invited them for an interview.
It’s best to have this conversation after the interview, rather than before or during.
You may want to ask the applicant questions about their offence.
You may ... want to ask what has changed that makes it less likely the person would reoffend
Seeing the complete picture
This is to give you a full and clear picture of their criminal history, and how it may affect the role.
You may also want to ask what has changed that makes it less likely the person would reoffend.
Your applicant can then explain the conviction in their own words.
After, use the information to carry out a full and fair risk assessment.
Be open and honest about what you need from your applicants and make it clear that you expect the same back
Carry out a risk assessment
At this point, you should gather all your information for your risk assessment.
This should include your applicant’s statement and anything you discussed in person. Plus any references that may support their application.
In the risk assessment, consider whether:
- Someone can legally work in your profession (e.g. someone who has a sex offence conviction cannot work with children or vulnerable adults.)
- The job may give the person opportunities to reoffend
- Hiring that person puts colleagues or customers at risk
- You can reduce risks e.g. by supervising or having the person work alone
Then, you’ll be able to make an informed decision.
Approach criminal convictions with sensitivity, not judgement
Remember these three things
When you’re considering applicants with criminal pasts, it’s important to always keep these three things in mind:
- Transparency: Be open and honest about what you need from your applicants and make it clear that you expect the same back.
- Ability: Consider an applicant’s skills and abilities before anything else.
- Open-mindedness: Approach criminal convictions with sensitivity, not judgement. It’s difficult for applicants to open up about a criminal history, even about something we might think is minor. So, keep an open mind and be willing to listen to what they have to say.
We must overlook the stigma in order to accurately weigh up the risk
A final note
Bear in mind that casting aside people with criminal convictions puts you at risk of applicants raising claims against you. Plus, it limits your talent pool.
To strive for inclusivity and equality, we must challenge bias.
We must overlook the stigma in order to accurately weigh up the risk.
Because focusing on someone’s past only prevents you from seeing their future potential.
If you enjoyed this, read: Diversity and inclusion: how to have bold inclusive conversations in the workplace
A leading authority on employment law and HR, Alan is a Chartered Fellow of the CIPD with 18 years’ experience in employee relations, a Chartered Manager and Fellow of the CMI, a certified practitioner and Fellow of the Australian Human Resources Institute, and a member of the Canadian Human Resource Professional Association. He is also a...
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