In Friday 1st February 2019's edition of Legal Island's Weekly Review of Developments  I was interested to read that around 75% of employers have admitted to rejecting applications that contain any kind of conviction. This was cited in reference to the recent UK Supreme Court ruling stating that the criminal records disclosure regime, as it applies to multiple convictions and childhood warnings and reprimands, is disproportionate. This will affect people with old and minor criminal records who would have previously had to disclose these during the recruitment process.

This made me consider how many of us are open to employing ex-offenders with unspent convictions and what benefits this can bring. Unspent convictions are those records that have not yet reached a defined time before they are removed from an individual's criminal record and will appear on all types of criminal record checks. In simple terms this means that employers can legally refuse to shortlist or employ an applicant with an unspent conviction. That said, employers are also entitled to take unspent convictions into account during the recruitment process.

So herein lies the conundrum. Understandably many employers are wary of recruiting ex-offenders and some even think that it is unlawful to do so in all cases. The only circumstances in which an employer may not legally recruit a person with a certain type of offending history is where it has led to the individual being barred from a regulated activity with children or adults. Setting this aside, a criminal record disclosure should not automatically mean that those candidates CVs are tossed to the 'no' pile. Research indicates that the vast majority of ex-offenders are simply wanting a chance and an opportunity to turn their back on crime.

What are the steps we should take if an applicant's criminal record reveals details of past convictions? The first step should be to assess how the conviction circumstances weighs up against the tasks to be performed in the job and the circumstances in which the work is to be carried out. Is there any relevance to the position? For example, where the offence was for fraud this is clearly relevant to a post that involves unsupervised access to money and valuables. For work with vulnerable adults, the relevant categories are generally considered to be violent and sexual offences. Beyond these however there are few offences such as public order offences that have much relevance to the position.

Another important consideration is the seriousness of the offence or disclosure. Drug offences cover everything from possession of small amounts of cannabis for personal use to possession of class A drugs with intent to supply. Clearly the name of the offence can make the offence sound more serious than it was, so it is important to offer the applicant an opportunity to explain the circumstances of what happened and whether there were any mitigating circumstances. Did the applicant show any remorse or take responsibility for their actions? What age are the offences and is there a pattern of offending or was it a one-off? Did the applicant serve time in prison and if so, what was their behaviour like during their incarceration and is it possible to seek a reference from their parole officer?

Once you have gathered all the relevant information you should carry out a risk assessment which will identify any risks along with appropriate safeguards to minimise these. It is also important to remember that information pertaining to an individual's criminal convictions is categorised as sensitive personal data under GDPR and as such the only people in the organisation that should be aware of any convictions are those who have a genuine need to know.

Locally based voluntary organisation, NIACRO can provide support to employers including advice on how to carry out a risk assessment. Speaking from experience, I have found NIACRO's advice to be invaluable in the past regarding an unspent conviction of an applicant. With their help we were able to determine that while the offence was very serious and came with a custodial sentence, it had no relevance to the position in question. We met with the applicant who provided an explanation of the circumstances surrounding the offence which highlighted mitigating circumstances during a troublesome period in the individual's teenage years. Given that it was also a single offence and it was clear that the applicant was remorseful we were happy to make a job offer which was accepted.

Actively hiring former prisoners is proven to reduce reoffending. It's about helping people get their lives back on track rather than face unemployment and increased risk of re-offending. Sadly only 17% of ex-offenders manage to land a job within a year of their release however overlooking ex-offenders does not make commercial sense in times of high skills shortages. The plus for employers is that it gives access to a talent pool previously untapped and greatly helps build brand reputation.

Useful reading:

Weekly Review of Developments 1/2/2019

NIACRO

Employing someone with a criminal record

Guidance: Employing prisoners and ex-offenders

Businesses urged to give ex-offenders a 'leg up' by employing them

Supreme Court judgement on criminal records disclosure is a victory for common sense, says Business in the Community