Tue 12 Mar 2019

Criminal records disclosure - time to think again?

Many employers will be able to provide a number of reasons as to why they want to know whether potential employees have criminal records, and why that would mean that they would not offer an ex-offender employment. Concerns about public safety, assessments of moral character and reliability being just a few.  For ex offenders looking for work, the statistics don't make great reading - .  But this is at a time when many employers say they are and with Brexit looming many are concerned that it is set to get worse.  So do employers need to re-think their approach to employing ex offenders, and is it as risky as some employers believe?

The recent Supreme Court judgement in the case of R (on the application of P, G and W) v Secretary of State for the Home Department has thrown the issue of disclosure of criminal records to employers firmly back into the public eye.  Although a case concerning the Disclosure and Barring Service that applies in England and Wales only, the case highlights the inequity of minor convictions staying with people through their lives preventing them from pursuing their chosen careers - an issue that arises throughout the UK when employers filter job applications on the basis of a tick box question about criminal convictions.

The case itself related to four individuals who were convicted or received cautions or reprimands in respect of relatively minor offences.  In each case the relevant convictions were "spent" under the legislation designed for rehabilitation of offenders but still had to be disclosed on applications for employment involving contact with children or vulnerable adults. At the time of the offences, one of the applicants was 13 and another was an undiagnosed schizophrenic.  The offences in the case included driving without a seatbelt on more than one occasion and, in the case of the undiagnosed schizophrenic, stealing a book worth 99p and then failing to attend at court.  In both cases the offences were historic and there had not been any re-offending.

Although the press coverage of the case might have led you to believe the whole of the disclosure system had been found to be unfair, in fact it was just two elements of it that the Court found to be a disproportionate way of trying to balance the needs of society with the needs of the affected individuals.  The first element was that in relation to disclosure where there were "multiple convictions", the requirement did not achieve its purpose of indicating propensity of offending as it required disclosure where a person has more than one conviction irrespective of the nature, similarity, number or time intervals between offences.  The second element was the mandatory disclosure of warnings and reprimands for younger offenders when the purpose of giving the warnings and reprimands was to avoid damaging effects later in life through disclosure. 

This issue has also been looked at recently in Scotland with a paper for the Scottish Centre for Criminal Justice being published which looked at the use (and misuse) of criminal history information in the employment context.  What becomes clear very quickly is that this is not a peripheral issue - in 2013 it was estimated that over 38% of men and 9% of women in the UK have at least one conviction - that equates to 11 million people.

The paper highlights research which shows that as people age they commit less crime, being in employment reduces the risk of re-offending and that, in general, after an average of 7 to 10 years without a new arrest or conviction, a person's criminal record essentially loses its predictive value.  If that is correct, then the requirement to disclose offences arguably becomes nothing more than a barrier to employment. 

So what can be done about it?  The obvious answer is that job applicants with a criminal record need to be assessed on a more individual basis.  The "Ban the Box" campaign is gaining momentum, including being championed by the civil service.  As the name suggests it calls upon employers to give ex offenders a chance by removing the tick box from application forms and asking about criminal convictions at a later stage in the recruitment process instead. It gives candidates the chance to show they have the skills for the job and the employer the chance to satisfy themselves as to the risk of employing an ex offender.

Moreover, GDPR has tightened up the circumstances in which employers may ask about criminal records, which must now satisfy a condition within Schedule 1 of the Data Protection Act 2018 (such as the check being necessary for employment purposes). In addition, such checks must also satisfy further safeguards, such as the employer having an appropriate policy document in relation to such checks. The ICO is working on specific guidance on the scope of these new provisions which hopefully will bring some welcome further clarity to these requirements.

The statistics coming from businesses that have hired ex offenders suggests that many of the concerns of employers about hiring are misplaced.  Retention rates for ex-offenders have been reported as being higher than within the rest of the workforce - no doubt fuelled by the difficulty an ex offender may have in obtaining alternative work.  Depending on which statistics you believe between 65% and 92% of businesses that hire ex offenders say their corporate reputation is enhanced as a consequence.  In addition to the civil service, companies such as Boots, Fujitsu, Sodexo and Virgin Trains are all signed up to Ban the Box.

There will of course always be some failures amongst new recruits, but that happens to those without criminal convictions as well as those with.  Equally, there will always be some ex offenders whose past convictions are such that they will not be suitable for all employment.  However, in a time where skilled labour is in short supply taking the time to engage with ex offenders and properly consider them for employment does appear to have the potential to be a win/win situation.

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice