Recruiting ex-offenders – the problems

Ex-offenders who find work are less likely to reoffend, but the rules on disclosing criminal records are an impediment, says Clare Gilroy-Scott

The problem

Following the success of organisations such as Timpson, Pret a Manger and Virgin Trains, which actively work in prisons to identify potential employees and recruit ex-offenders, the government is keen to encourage other businesses to follow suit. Indeed, the benefits of employing ex-offenders were highlighted in the Lammy Review, published on 8 September. While the report found that ex-offenders who find work are less likely to reoffend, it also reported that the rules on criminal record disclosure are an impediment to accessing employment. The report suggests that we could learn from the US, where there is a less rigid approach to criminal record disclosure when an ex-offender has proved to be genuinely reformed.

While many businesses may fear that ex-offenders lack honesty and reliability, in reality, businesses often report that their recruits tend to be loyal, hard-working and grateful for the opportunity. The Clink Charity, in particular, has an exceptional record of reducing reoffending rates by providing prisoners with the expertise to succeed in hospitality businesses on their release.

As well as proving reliable employees, ex-offender recruits can improve workplace diversification, help resolve any skills shortages and provide good PR for the business as a demonstration of its commitment to corporate social responsibility.

The law

So what are the rules about criminal record checks on potential employees? Employers can obtain information about criminal record history by requesting voluntary disclosure by the employee, or by carrying out official checks through the Disclosure and Barring Service. There is no prohibition on such requests by an employer, but there are limitations on both the obligation of individuals to provide such information and the extent to which an employer can use the information it obtains in making certain decisions.

Expert advice

Broadly speaking, while only unspent convictions should be disclosed to an employer, most spent convictions do not need to be disclosed, even where the employer (or potential employer) makes a request. The individual should not be subjected to a liability or prejudiced by failing to disclose a spent conviction. Dismissal on the grounds of a failure to disclose will not be lawful.

There are, however, specific exceptions whereby a spent conviction must always be disclosed. These relate to excepted occupations, offices and professions, such as those providing care services to vulnerable adults or working with children.

The individual's right to a private life under the Human Rights Act 1998 will also come into play. Businesses should consider the following in relation to criminal record disclosures:

• Is the nature of the conviction relevant to the role?
• How serious was the offence?
• How long ago did the offence take place and was there a pattern?
• Has there been a change in the individual's circumstances?
• What explanation has been offered?

Beware

So what do you do if a recruit reoffends? The ACAS code of practice on disciplinary and grievance procedures states that if an employee is charged with, or convicted of, a criminal offence, this will not be a reason in itself for disciplinary action or dismissal.

Where the charge or conviction does not result in a custodial sentence, the employer will have to consider the effect this will have on the employee's suitability to do their job, and their relationship with their employer, colleagues and customers. If the conviction results in a prison sentence, the employer will have to consider if the job can be kept open in light of the needs of the business.

Clare Gilroy-Scott is a partner in the London employment law team at Goodman Derrick

cgilroy-scott@gdlaw.co.uk