Ex-offenders: An untapped talent pool?

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What do employers considering applicants with criminal records need to bear in mind?

Half of employers would not consider employing an ex-offender, according to a 2016 YouGov survey commissioned by the Department of Work and Pensions. Yet, businesses such as Timpson, Virgin Trains and Pret a Manger actively recruit ex-offenders. So what do they know that others are missing and how can businesses manage the perceived risks?

This is not just a matter of altruism or the potential good PR; businesses report that, by demonstrating trust and giving ex-offenders an opportunity, they are rewarded with loyalty, hard-work and high productivity. The business benefits of having a diverse workforce are also well understood. Ex-offenders are a pool of talent, with skills and experience which can add value to businesses.

The social benefits of employing ex-offenders is highlighted in the Lammy Review, published on 8 September. Those who find work on release are less likely to re-offend than those who do not. But the review reports that the current criminal records regime is a real barrier to employment, particularly for young people at the start of their careers.

There are currently two ways in which an employer may obtain information about a person's criminal record history: voluntary disclosure or through official criminal record checks through the Disclosure and Barring Service (DBS). There is no express prohibition on an employer making a request for voluntary disclosure, but there are limits on an employee's obligation to disclose information and the extent to which an employer may base its decisions on this. Save for certain excepted jobs, an ex-offender who does not re-offend during a specified period is entitled to hold themselves out as having a clean record – their conviction is 'spent.'

DBS checks should be undertaken for roles which fall within those excepted occupations, offices and professions, such as those who work with children or vulnerable adults and some regulated occupations such as financial services; and there are detailed rules on who can apply, the level of disclosure to be provided by the DBS check and a Code of Practice which applies to recipients of disclosure information.

In some sectors, such as teaching and social work, certain criminal records are a bar to employment, and other sectors have specific guidance or regulations relating to criminal records. For other businesses, the employer will use its own judgement when considering the applicant's criminal record history.

Currently an international campaign Ban the Box invites employers to remove criminal record disclosure questions from job application forms. Removing this tick-box gives ex-offenders the chance to get further into the application process before disclosing a conviction.

The Lammy Review's recommendations go further, proposing that ex-offenders should be able to have their case heard by a judge or a body such as the Parole Board, who would decide whether to 'seal' their record. If successful that offence would not need to be disclosed and employers would be unable to ask for it. Evidence from the US indicates that such a reform of criminal records regimes can boost employment rates, generating tax and reducing welfare costs.

So what should employers who are considering applicants with criminal records bear in mind? First, remember that information about a criminal offence is sensitive personal data requiring compliance with data protection laws. The Information Commissioner's Employment Practices Code contains recommendations about how pre-employment vetting can be carried out lawfully: the employer should make it clear in the recruitment process that vetting will take place and how it will be conducted and should leave vetting as late as practicable. When recruiting, questions should be tailored to ensure that they are relevant to the role and designed to obtain no more information than needed.

Nacro (the crime prevention charity) recommends that employers take into account: whether the conviction is relevant to the position; the seriousness of the offence; the length of time since it was committed; whether there is a pattern of offending or other relevant matters; whether the applicant's circumstances have changed since the offending behaviour; and the circumstances surrounding the offence and the explanation offered by the individual. It recommends that employers do not have a blanket ban but carry out a risk assessment relevant to the sector, position and situation.

In assessing an applicant's suitability, the usual good practices of checking qualifications and taking up references, having probationary periods, clear job descriptions and supervision should be deployed.

By revisiting their practices on recruiting ex-offenders employers may gain a competitive advantage, particularly as the war for talent is heightened in many sectors moving towards Brexit.

Jane Amphlett is a partner and head of employment at Howard Kennedy


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