Introduction
There are important public policy reasons for encouraging employers to employ people with criminal records. Statistics show that if a person with a criminal record finds settled employment, the chances of them re-offending are cut by two-thirds. However, it is recognised that in some cases, it is proper for an employer to know whether a job applicant has a criminal record and it was for this purpose that the government set up the Criminal Records Bureau (CRB) in 2002, under Part V of the Police Act 1997 (the Act). The aim of the CRB is to provide employers with the information they need to make safe recruitment decisions and to put the provision of information concerning a person’s criminal record on a statutory footing.
The CRB therefore makes criminal records available but, in return, requires employers to comply with its Code of Practice, which, amongst other things, requires that ex-offenders be treated equally with other job applicants.
In The Employment Practices Code (Part 1: Recruitment and Selection), the Information Commissioner (IC) deals with the issue of verifying a job applicant’s criminal record under data protection principles. In general, the IC recommends that information about an applicant’s criminal record should only be sought if this can be justified in terms of the role being offered. As the IC points out, employers should not attempt to obtain information about an applicant’s criminal convictions by any other means (for example, by forcing an applicant to use his subject access right to get information from a source other than the CRB).
What does the CRB do?
The CRB’s difficulties when it was first set up were widely reported at the time. Happily, the CRB’s performance has improved greatly since then and in the year to 31 March 2005 it issued 2.5 million disclosures to over 13,000 organisations (CRB Annual Report 2004/05).
The CRB carries out a criminal record check for the individual job applicant, at the request of the prospective employer. In practice, the job applicant will need to complete a form applying to the CRB for the disclosure. However, it will be the employer who will forward the application form to the CRB and who, in most cases, will pay the fee (see below).
There are currently two levels of check. The appropriate level of check will be determined by the duties of the position applied for. Both levels of check involve the disclosure of spent convictions, which can only be revealed where the role in question comes within the list of statutory exceptions to the Rehabilitation of Offenders Act 1974 (ROA). A conviction is spent if (a) it did not carry a custodial sentence of over two and a half years; and (b) no further convictions have occurred within a specified period. Once a conviction is spent, the former offender can usually say that he does not have a criminal record. The levels of check are as follows:
Standard Disclosure – this check will be appropriate to posts which are excepted from the ROA, for example, professional posts (such as accountants) or posts involving contact with vulnerable people. It will contain details of all spent and current convictions and of any cautions, reprimands or warnings held nationally by the police. The fee is currently £29 but is free where the position applied for is voluntary; and
Enhanced Disclosure – this check is for more sensitive posts, also excepted from ROA, which involve, for example, sole charge of vulnerable people. In addition to the information in a standard disclosure, an enhanced disclosure may contain information from local police records. The fee is currently £34 and again, is free where the position is voluntary.
The CRB plans to issue a third type of disclosure, a basic disclosure, which will show details of convictions which are not spent and will be an appropriate check for most other employers to carry out (subject, of course, to information about an applicant’s criminal record being justified in relation to the post in question). It is not yet clear when the CRB will start to issue basic disclosures.
Registration
Employers who require standard and enhanced disclosures must register with the CRB and comply with the CRB’s Code of Practice (the Code).
The Code provides that standard and enhanced disclosure information (Disclosure Information) must be:
a) kept confidential; and
b) used fairly by the employer.
In relation to confidentiality, the employer must have a written policy on storage of Disclosure Information. Unauthorised disclosure of Disclosure Information is a criminal offence.
In relation to fair use of the Disclosure Information, the employer must have a written policy on the recruitment of ex-offenders. The employer must explain to job applicants that criminal record checks will be carried out but also assure applicants that Disclosure Information will not be used unfairly. In practice, this means that employers should focus on a person’s abilities, skills, experience and qualifications and consider the nature of the conviction and its relevance to the job in question.
The CRB emphasises that the existence of its disclosure service should not be regarded as a substitute for any of the full range of existing pre-appointment checks, including taking up references and enquiring into the applicant’s previous employment history. Disclosures should be seen as complementary to existing recruitment practice and should only be sought after a candidate has been provided with a provisional offer of employment.
The CRB is empowered to refuse to issue Disclosure Information to an employer if it believes that it has failed to comply with the Code.
Do small employers have to comply?
The Act provides for "umbrella bodies" which have registered with the CRB and which can countersign applications to the CRB on behalf of small employers who are not registered. An umbrella body must take reasonable steps to ensure that those to whom they pass Disclosure Information observe the Code.
Data Protection Act 1998 (DPA)
While the Code does not deal with basic disclosures, the IC believes that many of the Code’s provisions should also apply to basic disclosures, under the general principles of the DPA. A basic disclosure will be sensitive personal data under the DPA and will therefore only be able to be processed when the specified conditions are met (in most cases, this will mean where explicit consent has been given).
In addition, when Part V of the Act comes fully into force, new provisions of the DPA will also take effect. These provide for a new offence of enforced subject access – for example, it will be an offence for an employer to require a job applicant to supply the results of a subject access request which he has made, as a condition of being considered for a job. So, if an employer wants to see a job applicant’s criminal record, the only way to achieve this will be through the CRB.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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