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Talking Shop
Checking your employees’
criminal records by Adam Rice
H
ow far can employers go to check the criminal background of a and Wales). The Basic Disclosure will provide details of any unspent
prospective employee? This issue has come under the spotlight criminal convictions or will confirm that the candidate has none. Only
recently, in the wake of claims that police are keeping records for the candidate can apply for the disclosure – it is not available to
too long and handing over too much information to prospective employers.
employers. Here we look at some frequently asked questions on criminal If the role is one where the employer is entitled to ask for spent and
records including: How far can you go to check up on job applicants? unspent convictions, the employer can check this information using a
What if a candidate lies about their criminal history? What should you Standard Disclosure from the Criminal Records Bureau (CRB). The
do if an employee is charged with or convicted of a criminal offence? application is made by the employer, who must register with the CRB, or
an umbrella body that is registered with the CRB, and comply with a code
Can you ask job applicants about their criminal history? of practice designed to ensure that information disclosed is used fairly
Employers are entitled to ask candidates about their criminal records but and confidentially. For certain jobs involving greater contact with
there are limits on how far you can go. Asking if someone has any prior children or vulnerable adults, additional information from police records
convictions is an invasion of privacy and you should only do it if it is (like cautions and warnings) is also available and can be obtained by
relevant for the role – for example if they are going to be handling money employers through an Enhanced Disclosure from the CRB. Again, the
or are in a position of trust. Asking for details that are irrelevant or employer would need to be registered with the CRB or an umbrella
excessive could potentially breach the data protection laws, although in organisation for this.
practice it is rare for someone to bring a claim to enforce their rights.
Assuming it is relevant, for most jobs, employers are only allowed to ask What if the candidate does not have a clean record?
for details of "live" or "unspent" convictions (most convictions become Can you reject them?
spent after a certain number of years). Candidates for these roles can Employers are entitled to reject a candidate on the basis of their criminal
simply refuse to answer questions about spent convictions even if directly record. However, it is best practice to consider carefully the nature of the
asked. However, there are some specific jobs where employers can ask conviction and whether it makes the individual unsuitable for the role,
about both spent and unspent convictions – including doctors, nurses, rather than having a blanket ban on hiring ex-offenders. Consistent with
barristers, solicitors, accountants, teachers, and jobs which are FSA this, the CRB has published guidance that advises employers not to treat
regulated or involve access to children or vulnerable adults. criminal convictions as an absolute bar to making an offer, but to consider
the circumstances of the offence and the relevance to the role when
How do you know if the candidate is telling the truth? deciding whether or not to reject the candidate. However, an employer
The easiest way to check is to ask the candidate to produce a formal record who nevertheless decides not to make a job offer because of a candidate’s
of their criminal history. This can be done by asking them to obtain a unspent conviction (or because of a refusal to disclose details of unspent
Basic Disclosure from Disclosure Scotland (which also covers England convictions) is unlikely to face any employment claims.
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