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.
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.
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.
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.
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.
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.
The organisations and employers featured on the right have all signed up to Ban the Box along with many more, including us at the REC and the Civil Service. You can find out more about how to become a #banthebox signatory here and if you'd like to see a list of all the #banthebox signatories, you can do so here courtesy of Business in the Community.
If you'd like to know more about how your business can help ex-offenders into work, our criminal records guide gives you all the information needed to become an inclusive employer or recruiter.