Checklist for recruiters

1. Know your legal obligations as a recruiter

For further information, please visit the REC’s legal guide. 

 

a. Recruiters have legal obligations under the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations) which include obtaining sufficient information from a client to select suitable candidates. Make sure that you understand what is/is not suitable for your client so as to avoid making blanket assumptions that automatically exclude candidates with criminal records from your processes. 


b. Make sure you understand what information you can and can’t ask candidates to disclose in relation to criminal records and that you only seek information that is relevant to the role and permitted under the Rehabilitation of Offenders Act 1974 or the Exceptions Order 1975. For most roles, it is not permissible to seek information about spent convictions but there are some exceptions for certain types of work. You can use the gov.uk tool to check whether a role is eligible for a criminal record check and what level of check is permitted. Information relating to filtered (or protected) offences must never be requested, regardless of the role.  


   c. If you do collect information on criminal convictions, be mindful of your obligations under the Data Protection Act 2018. Criminal records information is subject to additional safeguards and collecting/processing information which is over and above what is necessary may give rise to a breach of data protection legislation. 


d. The legislation relating to and process for applying for criminal convictions varies in Scotland and Northern Ireland. Further information is available from Disclosure Scotland and Access NI respectively. The Scotland Works for You additionally provides guidance on employing candidates with convictions.

2. Have a clear and accessible policy on the recruitment of people with criminal convictions and keep this under review

Look at the types of roles you recruit for. What level of disclosure is required for them? Visit the REC legal guide for more information. Ensure there is enough flexibility in whatever process you decide on to cater to the individual needs of candidates and clients. You should also make sure that your policy for dealing with criminal records is readily available to candidates and clients.

Unlock have template policies and Nacro have produced a practical guide which you can draw on. The Disclosure and Barring Service has a specimen policy that you can adapt.  

 

3. Review the terms and conditions you have for candidates, clients and other intermediaries

a. Candidate terms: Remove any language or terms which would put people from under-represented groups at a disadvantage and replace with encouraging language. Are there any specific provisions in your candidate terms that exclude those with convictions? A process which automatically excludes such candidates may be at odds with your clients’ own inclusion/recruitment policies and you may also be filtering out good candidates who have the skills your clients want. 
b. Client terms: Are there any provisions in your client terms that require you to exclude candidates with convictions? Is this a current or historic client requirement? You should speak to your client about removing these and encourage them to be open and inclusive. Visit REC’s model terms and conditions for further information. 

 

4. Ensure your procedures support candidates with criminal records

Ensure that any questions you ask about criminal records are clear and candidates know they will not be automatically discounted. Unlock provide guidance on how to word questions. You should also have a policy explaining your recruitment process and approach to people with criminal records which candidates can access, ideally on your website. 

 

5. Encourage clients to be as inclusive and flexible as possible


Encourage employers to be as open as possible by raising awareness of inclusive recruitment initiatives like Ban the Box and Fair Chance. Challenge clients on their existing terms as these may be historic and in need of updating. Organisations like Offploy can help recruiters open up discussions with clients, arrange prison visits and provide advice on client terms. You could also introduce your clients to REC’s Good Recruitment Campaign which promotes an inclusive approach to recruitment across the board and provides tools to help employers benchmark and reinvigorate their hiring processes.

6. Consider if, when and how you ask candidates about criminal records

When deciding how to approach this, consider what types of roles you place and the practical requirements of your recruitment process. You should also consider whether you need a tick box on your registration form and remove it if possible. Could you adopt different approaches for regulated and unregulated roles? Would you be able to collect information on convictions later in the recruitment process e.g. after shortlisting or after interview. Unlock, Nacro and Business and the Community offer advice on these areas.  

7. Ensure you consider and consult both the candidate and the client when agreeing an approach to the disclosure of criminal records

a. Seek clarity from your clients and encourage them to be inclusive. Seek clarity from employers on their preferred approach regarding candidates with criminal records and check whether they are a Ban the Box employer at the instruction stage. If a client is a Ban the Box employer or has a preferred approach, tailor your processes accordingly in consultation with the candidate. Encourage them to be as inclusive as possible. Agree with your client who will carry out a risk assessment if one is needed. Nacro and Unlock can offer further advice. 


b. Don’t make assumptions. In the absence of instruction from clients, recruiters should not make assumptions about client preferences, automatically exclude candidates with convictions or operate blanket bans. Proceed in a way that gives the candidate the best chance of being selected based on their skills and suitability for the role. 


c. Discuss the issue with candidates. If a candidate makes a disclosure, it is essential that you give candidates the opportunity to explain the background and provide context. Visit our ‘how to have a conversation with a candidate’ section for more information. 


d. Agree on who should make the disclosure to the client. We advise members to always agree the process of disclosure with the candidate and that candidates should also be given the option to withdraw from the recruitment process if they do not want to make a disclosure. Disclosure should be made with the candidate’s explicit consent. On some occasions, candidates may wish to make the initial disclosure themselves and where possible, they should be given the opportunity to do this. However, this will depend on what procedures and agreements you have in place with your clients. See the ‘presenting an applicant’ section below for more information. 

8. Train your staff

Train your staff on your process to ensure that they are able to deal with this issue effectively.  Ensure it is part of your induction programme and regular training. In particular, consultants should be aware that for most roles candidates are only required to declare unspent convictions, if asked and that information relating to spent convictions that is inadvertently disclosed should not be passed on to clients. Nacro offers staff training in this area.


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