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A Closer Look at Risk and Disclosure

Sophie O'Sullivan, about 2 weeks ago

Most employers tend to be cautious about offering work to someone with a criminal record.

The legislation and practice around employing ex-offenders can seem complex and daunting. Especially with the new reforms to criminal record disclosure periods outlined in Ministry of Justice's recent white paper A Smarter Approach To Sentencing.

In light of this, how can employers stay up to date, recruit the right people and minimise risk?

Our resource pack includes a brief introductory guide to risk and disclosure. It signposts to experts in this field, namely Dominic Headley & Associates (DHA), Nacro and Unlock.

After attending training events and working with risk experts to understand the process, it is possible for any employer across the board to open up their recruitment to include those with a conviction.

With a clear framework in place, employers can act confidently in making decisions around suitability. This means that we have a fairer and efficient system that works better for all.

We need to move away from the perception that we can't hire people in certain environments.

-Dominic Headley, founder of Dominic Headley & Associates (DHA)

On the blog, we have written about the importance of a person-centred approach to risk and how to manage risk within a high risk sector i.e. health and social care.

In this blog, we will break down disclosure checks and the wider risk assessment.

…The final decision about the relevance of a conviction to an individual's suitability for some occupations should be that of the employer. Only the employer can judge whether particular characteristics of the particular job make it inappropriate to employ that particular ex-offender.

-Lord Sumption, Summary of Judgement*

Our Top Tips on Disclosure

If the role if covered by the Rehabilitation of Offenders Act (ROA) 1974, it is unlawful to discriminate against an applicant on the basis of a spent caution or conviction.

Decide if you require applicants to undergo a criminal record check.

If a check is required, we recommend that employers adopt a Ban the Box approach and request disclosure at a later stage i.e. shortlisted candidates for interview.

Make sure the check is at the correct level i.e. basic, standard, enhanced, or enhanced with barred list checks. Use the DBS tool for clarity.

You must give applicants a fair opportunity to provide accurate context and the circumstances surrounding their criminal record.

Therefore, it is best practice to signpost applicants to services where they can receive confidential advice on how to answer the question correctly (e.g. Nacro, DBS, Customer Services).

Ask applicants to provide a written disclosure statement, separate from the rest of their application. Or you may wish to conduct a risk assessment interview.

Look at the role in question, acknowledge risk in relation to the specific duties of that role and build the individual into this process.

Make informed decisions. Consider the historic nature of the offending behaviour, the openness of the applicant, context of offending, our knowledge of the applicant and any professional references. Make sure to document the rationale behind each recruitment decision.

Be aware of the recent reforms to criminal record disclosure periods. Thetime it takes for certain convictions to become 'spent' will be reduced so that they are no longer automatically disclosed on employment checks. Consult the Ministry of Justice's table outlining the new rehabilitation periods and any exemptions.

It is important for employers to remember that disclosure is only one part of the suitability test when screening applicants for roles within the organisation. Disclosure checks run alongside a value-based interview, adequate references and qualification checks.

Our Top Tips on Risk Management

Be aware of perceived risks that may emerge due to reputational and cultural misunderstanding within the business.

Provide ongoing training and effective work-based support such as a supervised mentoring or buddy scheme.

Attend training events and workshops to stay informed and break down unnecessary barriers.

From time to time, employment can go wrong. This is a natural part of the recruitment process. Look at ways of managing any external factors that may affect the candidate's ability to perform. Be flexible where you can.

Consult Nacro's comprehensive guide to recruiting safely and fairly. Unlock also have a brilliant website with practical guidance and tools.

Over 20% of the working-age population is recorded as having a criminal record. This is a significant talent pool that businesses cannot afford to ignore. Having a clear framework in place is so important to be able to access this talent safely and fairly.

*https://www.supremecourt.uk/cases/docs/uksc-2016-0195-judgment.pdf p31