January 24, 2019
The study by Strathclyde University found that this practice, as well as carrying a legal risk, does not benefit employers because it does not give them any detail about the circumstances of a conviction. As a result, it can lead to employers automatically rejecting talented candidates. The report has recommended that employers should only ask about convictions if it is necessary to do so because a role has specific security requirements.
This recommendation has been welcomed by supporters of the “Ban the Box” campaign, whose aim is to get employers to dispense with the use of the criminal record declaration on job application forms. They say that by removing this commonly-used tick-box it would “open a pool of talent for business” and help those who face stigma get back into work.
From a legal perspective, an employer may ask about an applicant’s criminal record. However; in most circumstances, if a conviction is “spent” there is no obligation to disclose it and an employer cannot refuse to employ someone on the grounds of a spent conviction. A conviction is spent if the person does not reoffend within a specified period; this period depends on the crime committed, and the most serious convictions will never be considered spent.
Employers should therefore consider only asking about “unspent” convictions during their recruitment processes, which lessens the risk of a claim that they unfairly refused to employ an applicant due to a spent conviction.
However, there are exceptions for some employers where an applicant must disclose even a spent conviction; for example, if the position involves working with children or vulnerable adults. In this situation an employer will require a Disclosure and Barring Service (DBS) check to search for criminal records before making an offer of employment.
Finally, employers should also remember that information about criminal convictions is a “special category” of personal data under the GDPR and Data Protection Act 2018, and therefore needs to be treated particularly carefully.
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