CIPD - Employing people with criminal records

Diversity and equality

Revised April 2009

This factsheet gives introductory guidance. It:

outlines best practice in recruiting and managing people with criminal records
explains relevant elements of the Police Act 1997
considers the issue of 'spent' convictions and the Rehabilitation of Offenders Act 1974
describes employers' duty of care and corporate responsibility
includes the CIPD viewpoint.

Criminal records in context

Dealing with the employment of people with a criminal record has become a real issue for employers now that criminal records can be accessed through the Criminal Records Bureau (CRB), Disclosure Scotland or Access Northern Ireland.

It has been estimated that a fifth of the working population has a criminal record. Employment is the single most important factor in reducing re-offending and failure to get paid employment is a major reason for re-offending. But estimates suggest it is at least eight times harder for a person with a criminal record to obtain employment.

Evidence shows that of all things to put an employer off, a criminal offence is the worst. People with a criminal record are unsure about disclosing information when seeking employment. They know from experience that this will jeopardise their chances. They also know that not declaring records about unspent convictions will break the trust of an employer if it is found out at a later date. This is a dilemma that can only be addressed by encouraging disclosure and by fair employment practice.

The Prison and Probation Services both have targets for getting offenders into employment – for the year ended December 2007, these targets were all exceeded.

What is a criminal record?

A criminal record arises from a conviction. There are also police records but these are not criminal convictions. They include cautions, reprimands and final warnings. Cautions (for adults) are based on the seriousness of offences. A caution is a warning about future conduct given by a senior police officer, usually in a police station, after a person has admitted an offence. It is used as an alternative to a charge and possible prosecution. Reprimands and final warnings (for offenders under 18 years old) are issued by the police as an alternative to putting a young person before the courts. Again, the person has to have admitted the offence. All such offences would be revealed by a CRB check.

Criminal records and the law

The Rehabilitation of Offenders Act 1974

Under the Rehabilitation of Offenders Act 1974 (ROA) any conviction for a criminal offence can be regarded as spent provided:

the conviction did not carry a sentence excluded from the Act, such as a custodial sentence of over two and a half years
no further convictions occurred within the rehabilitation period.

A conviction is not 'spent' until the rehabilitation period is complete. Once it is 'spent', the rehabilitated person does not have to reveal its existence in most circumstances and can answer 'no' to the question 'do you have a criminal record?' Certain occupations are excepted - these are listed in Rehabilitation of Offenders (Exceptions) Orders. Custodial sentences of over two and a half years are never considered spent.

It is an offence under this law for anyone who has access to criminal records to disclose information about spent convictions unless officially authorised. It is also a serious offence to obtain information about spent convictions by means of fraud, dishonesty or bribe.

The Police Act 1997

Part 5 of the Act:

enables access to criminal record checks
now applies across England, Wales, Scotland and Nothern Ireland
introduces three conviction disclosure categories (described below)
supports protection of individuals afforded by the Rehabilitation of Offenders Act 1974 (ROA)
requires employers to register with the CRB/Disclosure Scotland/Access Northern Ireland in order to be able to ask individuals to apply for a standard disclosure or an enhanced disclosure.

After a review, Home Office Ministers decided to implement Part V and set up the CRB in March 2002 to administer criminal record checks. In Scotland, Disclosure Scotland performs the same function,as does Access Northern Ireland in Northern Ireland.

The Act makes provision for three different levels of criminal record checks. These are:

Basic Disclosure (BD) - issued only to individuals who will be able to choose to show it to employers (or anyone else). A BD will show all convictions held at national level which are not 'spent' under the ROA. A date for introducing BD in England and Wales has yet to be anounnced.
Standard Disclosure (SD) - available for posts or purposes which are exceptions to the ROA, groups include those involved regularly with; children, young people, the elderly, sick or handicapped, administration of the law and other sensitive areas. An SD will include details of convictions, including 'spent' convictions, and nationally held cautions - an application must be countersigned by a registered person.
Enhanced Disclosure (ED) - available for those applying for positions involving regular care for, training, supervising or being in sole charge of young people, for certain statutory licensing purposes and judicial appointments. An ED will contain similar information to the SD and will include local police records, such as relevant non-conviction information - an application for an ED must be countersigned by a registered person.

Part V of the Police act stated that individuals are responsible for the cost of certificates but CIPD recommends that employers offer reimbursement if they can.

It is stressed that organisations in receipt of CRB/Disclosure Scotland/Access Northern Ireland information will be liable for the consequences its misuse.

Safeguarding Vulnerable Groups Act 2006

This Act introduces a new centralised vetting and barring scheme in England, Wales and Northern Ireland to improve the protection of children and vulnerable adults. The scheme will be run by the newly created Independent Safeguarding Authority (ISA) and will be implemented from July 2010 (delayed from October 2009). A separate but aligned scheme is being set up in Scotland.

From January 2009 the ISA took over responsibility from the Department for Children, Schools and Families for making barring decisions on new referrals about people who are legally banned from working with children or vulnerable adults.

For more information see our factsheet on this topic and the ISA website (see the Useful contacts section below).

Go to our factsheet on Recruitment of people working with
children and vulnerable adults

The Criminal Justice and Immigration Act 2008

This Act amends the Rehabilitation of Offenders Act 1974 bringing warnings, reprimands and cautions within its scope: reprimands and warning are ‘spent’ at the time they are given and conditional cautions are ‘spent’ after three months. They are however still recorded on the Police National Computer and will continue to be disclosed when required.

Latest government initiatives and consultations

In December 2005, the government published a green paper¹ for consultation which announced plans to help reduce re-offending by improving training and education to help offenders into jobs when they leave prison. The proposals included:

a stronger focus on jobs with more relevant skills training, designed from and responding to employers’ needs
motivating and engaging offenders, with incentives for those who participate in the scheme
closer working together of prison and probation services to ensure greater continuity.

This consultation led to the launch in January 2007 of the 'next steps' document², announcing three priorities for change:

engaging employers through the Reducing Re-offending Corporate Alliance
developing a Campus Model to build on the Government's Offender Learning and Skills Service
reinforcing the emphasis on skills and jobs in prisons and probation.

The Reducing Re-offending Corporate Alliance is an ‘umbrella’ for all cross-government activities which increase the numbers of offenders obtaining and keeping employment. It aims to involve as many employers as possible in activities that can improve the employment prospects of offenders and increase their skills and employability at a national, regional and local level, Membership of the Alliance has grown substantially - now over ninety organisations have signed up.

Recommendations

Organisations should develop policies on employing people with criminal records and make appropriate changes to their recruitment and employment practices. This includes assessing and managing risk and implementing safeguards. For further information, see our factsheet on assessing risks when employing ex-offenders.

Go to our factsheet on Employing people with criminal records: risk assessment

Management should be involved in the design of policies and committed to making them work, and there should be general awareness training to educate and inform the workforce.

Objective assessments will:

focus on a person's abilities, skills, experience and qualifications
consider the nature of the conviction and its relevance to the job in question
identify the risks to the organisation's business, customers, clients and employees
recognise that having a criminal record does not always mean a lack of skills, qualifications and experience
note that high-quality training, leading to qualifications, is available in many prisons.

Assessing criminal records will:

always be based on confidentiality and discretion when requesting and handling criminal records
encourage applicant honesty by stating that applicants will be considered on merit and ability
not include requests for spent conviction records unless the job is exempt under the terms of the ROA
advise applicants to submit confidential records separately from the usual application form and to a named employee
comply with the data protection law
ensure access to criminal record information is only on a need-to-know basis.

Adequate supervision is important. Employers should:

agree policies on access to criminal records
inform successful applicants of this policy
explain to employees the various reasons to give a fair chance of employment to people with criminal records
review insurance arrangements and consider fidelity guarantee schemes (the Apex Trust can help - see Useful contacts section below).

See our factsheet on recruitment for more information on general recruitment issues.

Go to our factsheet on Recruitment

Effective policies require the knowledge, understanding and actions of key employees and clarity about their personal roles and responsibilities. They should understand about:

the ROA and 'spent' convictions
the types of disclosures
handling confidential information
assessing risk
identifying safeguards
making balanced objective judgements.

Contact with organisations that offer information about the employment and support of people with criminal records is helpful.

CIPD viewpoint

There are important social and business arguments for employers facing up to the challenge of employing people with criminal records in responsible balanced ways that maintain a duty of care to employees and customers, protect business interests and give access to the widest pool of talent. Many offenders who get jobs turn out to be reliable and committed employees who are loyal, hard-working. In our survey Employing ex-offenders to capture talent, the 134 organisations with positive experiences of employing ex-offenders said they settle into work well with colleagues and perform well. The evidence from this survey shows that employers’ expectations about the honesty, reliability and personal behaviour of ex-offenders are unfounded by their experiences. And ex-offenders tend to stay with one employer: an earlier CIPD survey Employer attitudes towards ex-offenders showed that in 47% of organisations, ex-offenders stayed for more than three years.

View the survey Employing ex-offenders to capture talent

In the light of the Police Act 1997, the CRB/ Disclosure Scotland/ Access Northern Ieland and a general toughening of attitudes, it is recommended that employers should take action to ensure that approaches to diversity and equality cover this issue.

In making employment decisions, CIPD encourages employers to make objective assessments, to adopt an open mind and to focus on merit and ability to do the job. Blanket exclusion policies should be avoided. Consideration should be given to extenuating circumstances, the nature and relevance of the offence, the potential risks involved in employing the offender, if and how these could be sensibly and effectively managed and the possibility of safeguards such as indemnity insurance explored.

All employers should address their common law duty to provide a safe working environment. Organisations that have a legal obligation to protect vulnerable customer and client groups such as children in care, from people who have committed serious offences should be particularly vigilant about risk management.

CIPD is active in promoting the potential of ex-offenders and has worked extensively with the CRB to produce a guide to employing ex-offenders. We have also produces a good practice tool for CIPD members.

Useful contacts

References

1. DEPARTMENT FOR EDUCATION AND SKILLS. (2005) Reducing re-offending through skills and employment. Cm 6702. London: DfES. Available at: http://www.dcsf.gov.uk/offenderlearning/index.cfm
2. DEPARTMENT FOR EDUCATION AND SKILLS. (2006) Reducing re-offending through skills and employment – next steps. London: DfES. Available at: http://www.dcsf.gov.uk/offenderlearning/index.cfm

Employing people with criminal records