Asking applicants about criminal records

Yes, but the question you should ask will depend on the job that you are recruiting for.

All employers are entitled to ask applicants to disclose details of any cautions or convictions which are not yet spent (i.e. unspent) under the terms of the Rehabilitation of Offenders Act 1974 (as amended). If you are recruiting for a job that is covered by the ROA, you should use the wording on this sample criminal record declaration form.

Criminal record declaration form for jobs covered by the ROA

If you are recruiting for positions which are exempt from the ROA, you are entitled to ask for details of:

• Any unspent cautions or convictions.
• Any adult cautions or spent convictions which are not eligible to be filtered.

This is the information that you are entitled to take into account when deciding on the applicant’s suitability for the role. If you are recruiting for a role that is exempt, or excepted, from the ROA, you should use the wording on this sample criminal record declaration form:

Criminal record declaration form for jobs exempt from the ROA

For a full list of exempt posts which are subject to enhanced checks, please see here. For a list of exempt posts subject to standard checks, please see here.

The Rehabilitation of Offenders Act 1974 allows most convictions (and cautions) to be considered spent after a specified period of time. Once a caution or conviction is spent the person is considered rehabilitated and the ROA treats the person as if they had never committed an offence. This means that jobseekers with criminal records have the right to legally withhold such information from a prospective employer when applying for most jobs. The specified period of time is determined by the sentence or disposal that was received in respect of a particular offence.

Please see our guide to the Rehabilitation of Offenders Act 1974 for full details of how long it takes for convictions to be spent.

This is very important because, if you fail to ensure that your recruitment forms and online portals are in line with legal requirements, you could face an applicant pursuing a civil claim, or prosecution by the Information Commissioner’s Office.

If you are recruiting for a post that is covered by the ROA, you can use this sample form.

Criminal record declaration form for jobs covered by the ROA

If you are recruiting for a post that is exempt from the ROA, you can use this sample form

Criminal record declaration form for jobs exempt from the ROA

If you are going to ask applicants to declare their criminal record, you should do this in a way that encourages honesty. It is good practice to inform prospective applicants from the outset exactly what information will be requested from them and why, and at which stage of the application this information will be requested. The emphasis should be that the information will be used only to inform the overall assessment as to their suitability for the role, where it is relevant. Providing this information will help prospective applicants decide whether they would like to apply or not.

To determine when you should ask applicants to make a criminal record declaration, you need to think carefully about why you are asking for this information in the first place. You also need to consider exactly what information you will need in order to help you assess whether the criminal record is relevant to the role applied for and whether the applicant is suitable for the role. This will help you decide which stage of your recruitment process would be the most appropriate to get the information that you need.

Nacro was a founding member of Business in the Community’s (BITC) Ban the Box campaign which called on employers to ask the right questions about criminal records at the appropriate stage of the recruitment process. We recognise that the appropriate stage will not be the same for every employer, but there are some general principles that we would encourage you to take on board when making your decision about when you might ask for a criminal record declaration.

Ideally, you should avoid requesting criminal record information during the initial application stage of recruitment (i.e. the application form or online portal). This will ensure that you first assess an applicant’s suitability based on their skills, merits and experience. A simple yes/no declaration on an application form serves no helpful purpose as it will not give any information as to the context or circumstances of the offences which is necessary to inform your risk assessment.

Criminal record information is personal, sensitive data and therefore subject to data protection laws and regulations. It is difficult to justify the collection of criminal record data from all applicants when some may not even meet the requirements for the role.

It is important that you give the applicant the opportunity to put their offence/s into context, to explain the circumstances and – most importantly – to provide you with reassurances of how their circumstances and attitudes towards their offences have changed. This information is far more useful when determining whether the criminal record is relevant to your recruitment decision and will help to inform your risk assessment. There is often not enough room on an application form to gather this information, but you can adapt your application forms, online portals, recruitment policies and procedures to ensure that you do not inadvertently discriminate against applicants who make a declaration. Please see our sample criminal record declaration forms above, which you can adapt to suit the needs of your organisation.

Ideally, you should request a criminal record declaration in writing, in the form of a disclosure statement. This is useful as it serves as evidence of exactly what the applicant disclosed when applying and may be held on the applicant’s file (if they are successful). You can direct applicants to Nacro to get support with drafting a disclosure statement.

Some applicants may prefer to disclose information verbally. There is no great advantage to you or to the applicant in requesting a verbal disclosure during an interview, particularly if your interview panel will not be carrying out a risk assessment on the criminal record information. Any verbal disclosures should ideally be made directly to the people within your organisation who are responsible for doing the risk assessment, as it is important that they are fully aware of the context, circumstances and reassurances from the applicant. Information is easily lost or misrepresented when passed on through third parties. If criminal record information is discussed verbally, it’s a good idea to record exactly what is said, and keep this stored securely on the applicant’s file, in order to avoid disputes further down the line.

Under the General Data Protection Regulations (GDPR), you need to identify a lawful basis for collecting criminal record data. You are likely to find that the most appropriate basis to rely on is that you have a legitimate interest for collecting and processing relevant criminal record information.

Once you have established a lawful basis for collecting and processing criminal record data, one of the conditions found under Parts 1, 2, 3, of Schedule 1, Data Protection Act 18 must also be met. The condition(s) you are able to rely on will depend on the nature of your organisation and the roles and/or services you offer.

Regardless of the condition(s) you rely on, you must make it clear to applicants that relevant criminal record information will be sought and be transparent about how you will use the information in your decision-making process.

In general, criminal record declarations on application forms or online portals serve no helpful purpose for employers or applicants. Application forms rarely have the space required for an applicant to provide the level of useful details about a criminal record that will help you to make an informed, evidence-based decision.

Initially, applicants should be assessed on the basis of skills, qualifications and their ability to do the job; if they do not meet your essential criteria, you do not need information about their criminal records.

Yes, if it is relevant to the role, you can ask volunteers to make a criminal record declaration and you can request that they undergo DBS checks. The question you ask and the level of DBS check will depend on the nature of the role.

As above, you should not request criminal record declarations from all volunteer applicants, but only those you have either recruited or are seriously considering for the role. If you are going to ask for a declaration, you must have a recruitment of ex-offenders policy and process in place and make this available to applicants.