In on the act: Employing people with criminal records

Our continuing series of guides to major employment legislation puts key
information at your fingertips and brings you up to date with the latest
developments. This week Alison Hollingsworth, solicitor with the employment
rights and benefits group at Bristows, examines the services to be provided by
the Criminal Records Bureau from 1 March, under Part V of the Police Act 1997

There is currently no way for the majority of employers to satisfy
themselves about a job applicant’s criminal record.

The Government believes this is unacceptable. There are also important
public policy reasons for encouraging employers to take on 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.

The Criminal Records Bureau will therefore make criminal records available
but in return it requires employers in some cases to consider ex-offenders
equally with other job applicants.

What will the CRB do?

The CRB will carry out a criminal record check on the individual, often at
the request of an employer. This service will cost a £12 fee.

There will be three levels of checks and the appropriate level will be
determined by the duties of the position applied for. The levels are:

– Basic disclosure – this will show details of convictions which are not
spent and will be appropriate for most employers to carry out. Under the
Rehabilitation of Offenders Act 1974 a conviction is spent if (a) the
conviction did not carry a custodial sentence of more than
two-and-a-half-years; and (b) no further convictions occurred within the
rehabilitation period. Once a conviction is spent, the former offender can
usually say that he/she does not have a criminal record

– Standard disclosure – this check will be appropriate to posts which are
excepted from the ROA – professional posts, for example, 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

– Enhanced disclosure – this check is for more sensitive posts, also
excepted from ROA, which involve sole charge of vulnerable people, and so on.
In addition to the information in a standard disclosure, an enhanced disclosure
may contain information held locally by the police

Standard and enhanced disclosures are to be made available to those
employers who already have access to police checks from 1 March, and to other
employers from 1 April. Basic disclosures are expected to become available from
summer 2002.

Do smaller 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 those to whom they
pass Disclosure Information observe the CRB’s Code of Practice (the Code). The
CRB can refuse to issue a disclosure if an organisation fails to comply with
the Code.

Registration

Employers that require standard and enhanced disclosures must register with
the CRB and comply with the Code.

The Code provides that standard and enhanced disclosure information must be:

– 1. Kept confidential

– 2. Used fairly by the employer.

In relation to 1, the employer must have a written policy on storage of
Disclosure Information. Unauthorised disclosure of Disclosure Information is a
criminal offence.

In relation to 2, 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 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.

Data Protection Act 1998

Basic disclosures are not subject to these more stringent rules. However, a
basic disclosure is sensitive personal data under the Data Protection Act and
can therefore only be processed when the specified conditions are met.

In addition, when Part V of the Act comes into force, new provisions of the
DPA will also take effect. These provide for a new offence of enforced subject
access – it will be an offence for an employer to require an applicant to
supply results of a subject access request, for example, which he has made as a
condition of being considered for a job.

So, if employers want to see a job applicant’s criminal record, the only way
to achieve this will be through the CRB.

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