July 18th, 2018 | Sterling

Tips for Being Compliant When Considering the Results of Criminal Record Checks

At the end of last year, we took a survey to market to get an idea of the landscape in the UK for background screening. The findings of the “Background Checks 2018: UK Trends & Best Practices Report” revealed some interesting results. One of the most interesting insights was that 58% of businesses now perform criminal record checks as a part of their background screening programme. Criminal record checks are the second most common check after right to work checks, which are obligatory for all employees. According to a recent People Management article, 11 million people in the UK have a criminal record yet 50% of employers would not consider taking on ex-offenders.

Employers must adhere to essential legal obligations when conducting criminal record checks and organisations should be transparent about their approach to hiring those with a criminal record. Tim Stokes of Sterling recently moderated a webinar, “Criminal Record Checks: HR Compliance and Best Practices” with two experts in the field, Emma O’Leary, Partner at Essential Solicitors, LLP and Chris Proctor, a Legal Officer at Nacro. The webinar looked at the basics of criminal record checks, the way these checks are processed, how changes such as Ban the Box and global screening are impacting organisations and how employers should interpret the results and what approach they should take for making a fair and compliant hiring decision.

Types of Criminal Record Checks

The three main authorities responsible for providing disclosure information in the UK are Disclosure and Barring Service (DBS) for England and Wales, Disclosure Scotland and Access NI (Northern Ireland). There are three types of criminal record check disclosures from basic to enhanced. Each type offers different access and DBS eligibility:

• Basic: Basic disclosures look at unspent convictions only. There are no DBS eligibility requirements.
• Standard: Standard disclosures include unspent convictions, spent convictions, cautions, warning and The DBS eligibility includes positions included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, NHS staff, legal and financial professions and other specific industries.
• Enhanced: Enhanced disclosures include unspent convictions, spent convictions, cautions, warning and reprimands, other relevant police data, and the children or adult barred list. The DBS eligibility includes positions included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and in the Police Act 1997 and individuals who work with vulnerable adults and children.

The process of completing a criminal record check starts with the candidate completing their consent and providing all the relevant information needed to conduct a check. The application would then be sent to the relevant agency (DBS, Access NI or Disclosure Scotland) for processing. Each agency has a different procedure to receive the application as well as return results for each type of disclosure as detailed in the webinar.

Dealing with Disclosure Certificates and Compliance Considerations

The DBS Code of Practice states that registered bodies/employers are required to have a suitability statement in respect of the recruitment of ex-offenders, which is a requirement of the DBS code of practice. Failure to comply can lead to deregistration. The Rehabilitation of Offenders Act was introduced to protect individuals convicted of minor, one-time offences, from future discrimination.

The ROA enables certain convictions to become ‘spent,’ or ignored, after a ‘rehabilitation period’ – a set length of time from the date of conviction. In the ROA (Exceptions Order) 1975, certain roles, professions and industries are exempt from the Rehabilitation of Offenders Act 1974. Employers are entitled to ask job applicants to declare spent cautions, convictions, reprimands and final warnings that are not “protected.” For positions that involved working in regulated activity with adults or children, it is a criminal offence to knowingly employ someone in regulated activity if they are barred.

Ban the Box Campaign

The Ban the Box campaign is growing in the UK. Ban the Box laws have been growing in popularity in states and cities across the US for the last two decades. Under US federal Equal Employment Opportunity Commission (EEOC) Guidance, employers are required to apply the Green Factors which helps guide them to determine whether past convictions are relevant to future job performance. These laws create a fair opportunity for people with convictions to compete for jobs based on their skills and experience. The movement calls for employers to remove the default tick box asking about criminal records from job application forms ensuring applicants are considered first on their ability to do the job before they are asked about criminal records.

GDPR Data Protection Impact

The updated regulations of the General Data Protection Regulation (GDPR) states that criminal record information is classed as “special category data,” which is the same as it was defined under the original Data Protection Act of 1998. Employers that ask for a criminal record declaration on application forms and rely solely on self-declaration at this stage are likely to find it difficult to justify that they have a legitimate interest in collecting this data and that, in doing so, they are processing it in line with data protection principles.

Employers must have a lawful basis for processing criminal record data which includes receiving consent or having legitimate interest.  Under consent, Individuals have the right to withdraw their consent to the processing and retention of their criminal record information at any time. To have legitimate interest, an organisation must show purpose, necessity and balance for the collection of personal data.

Changes in the Way Criminal Record Checks are Processed

There have been recent changes to how criminal record checks are processed. Disclosure Scotland now processes Basic Disclosure applications according to Scottish law that has different filtering rules on when convictions become spent. Previously disclosure Scotland were processing basic checks for all applicants living in Scotland as well as England and Wales too. Now the disclosures only apply the Scotland filtering rules for applicants living and working in Scotland. DBS must now be used for basic disclosures for candidates living and working in England and Wales.

DBS checks require original documents to be checked and the person who is checking the original and valid documentation can either be the person who is recruiting the applicant or it could be a professional person such as a doctor, a barrister or a nurse who must confirm they have checked the identity of the applicant. Then in terms of results, the DBS insist that the applicant should be able to view their certificate first before the employer does, giving the applicant the opportunity to dispute any information that is inaccurate on the certificate. As a result of that, the DBS continue to process the application as usual, but instead of sending the certificate to the employer they will send the paper certificate to the candidate to their preferred address (it does not need to be their current address, it just needs to be an address within the UK) as well as instructions on how to obtain an electronic copy of the certificate which the applicant can view online. If the employer needs to view that certificate the applicant can provide the employer with a one-time authorization code which they can use to view the digital certificate.

Interpreting the Criminal Record Check Results

Once an employer receives the results of the criminal background check, how should they proceed? Nacro, in conjunction with the CIPD, has published “Recruiting Safely and Fairly”, step-by-step guidance on what an organisation should do with the results of a disclosure certificate. Organisations must know how to compliantly interpret criminal record check results and what information they can legally use to make a safe and fair hiring decision. DBS Code of Practice gives a helpful reference for employers when dealing with the results and communicating with candidates.

Employers and/or registered bodies (acting on behalf of) must:

• Have a written policy on the suitability of ex-offenders for employment in relevant positions
• Ensure policy is available upon request to potential applicants
• Make this policy available to their potential or existing employees
• Ensure that all applicants for relevant positions or employment are notified in advance of the requirement for a Disclosure
• Notify all potential applicants of the potential effect of a criminal record history on the recruitment and selection process and any recruitment decision
• Discuss the content of the Disclosure with the applicant before withdrawing any offer of employment

When conducting a criminal record risk-assessment, organisations should consider the nature, seriousness and relevancy to the role of the offence, the length of time since the last offense, any pattern of offending and age at the time of the first and last offense. Most importantly, employers should address efforts by the candidate to address past issues and making a change to improve themselves.

One of the most important things a business can do is document their criminal record policy. By doing this, they will ensure greater consistency and fairness and ensure those compliance obligations are clear to all involved in the process. Also, it is crucial to have all the information pertaining to a criminal record check that can and cannot be used when it comes to making hiring decisions. To find out more information, listen to the OnDemand version of the webinar, “Criminal Record Checks: HR Compliance and Best Practices.”

Please note that neither Sterling nor Nacro is a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.