The Employment Rights Bill continues its progress through parliament this week, with the first oral evidence sessions of the Committee Stage. The Bill has already attracted a lot of attention as it introduces some key changes to people’s rights. In addition to everything already discussed during the second stage debate, Unlock are hoping there will be an opportunity to consider how the rights of people with criminal records in recruitment and employment can be protected via this legislation.

We have updated our initial briefing on the Bill. The new briefing now includes proposals for amendments which would add both existing and potential rights into legislation.

The Rehabilitation of Offenders Act (ROA) sets limits on what information potential or current employers can collect and hold about someone’s criminal record. This relates to the right for people to move on from their criminal history. This right means that once your caution or conviction becomes spent, you don’t have to disclose it (apart from in certain exceptional situations).

Yet in practice, due to the complexity of the criminal records system, employers may collect data that you have a right not to disclose. Then employers use the information they should not be collecting to make decisions about recruitment or employment.

It can be very difficult for people to challenge these decisions and prove that an employer used their data unfairly. So we are setting out three ways in which the new Bill could better protect both businesses and people with criminal records.

An automatically unfair basis for dismissal

The ROA clearly sets out the right for protection from being unfairly dismissed on the basis of a spent caution or conviction.

However, at present, people have to proactively challenge any such decisions via Tribunals. Courts are generally supportive of claims of this kind. But taking such a case to tribunal demands resource and motivation, which can be hard – especially when a person has just lost their job.

If the legislation specified that a spent conviction was an automatically unfair basis for dismissal, people’s rights would be more enforceable and accessible in practice.

More protection for people with unspent convictions

Employers are permitted to exclude applicants on the basis of an unspent caution or conviction. However, Unlock believes that people shouldn’t be dismissed on this basis after they have been recruited.

This can happen where an employer chooses to not ask applicants about their criminal record, then ‘finds out’ about an employee’s criminal record at a later date. Or it can happen where an employer recruits a person whom they know has an unspent criminal record, but the employer employs them regardless. Then, once the person is employed, the employer ‘changes their mind’ about that criminal record and fires someone because of it.

In both of these scenarios, the employer has decided that criminal record data is not relevant for the role at hand. Yet in both, the employer changes their mind and the employee is dismissed. Such changing decisions indicate that an employer does not have a robust, considered process in place for criminal records. Decisions like these leave people with criminal records in a precarious position even once they have secured work.

Repercussions for employers using information on spent convictions/cautions illegally

Our third proposal relates to the use of information about a spent caution or conviction during the recruitment process. As referenced above, employers are generally not allowed to use this information in deciding whether to recruit someone (apart from specific exceptions).

However, due to the complexity of the criminal record system, employers can sometimes collect this data inadvertently through unclear questions or applicants over-disclosing. Or, if employers carry out internet searches on applicants, they may find information about a spent caution/conviction without realising it.

At the moment, whilst employers are not permitted to take account of this data in most situations, there are no repercussions for doing so. We think everyone (employers and applicants) would benefit from greater legal clarity here.

We therefore recommend that there should be a requirement for employers to take reasonable measures to ensure they are not collecting or referring to spent criminal record data when recruiting for posts covered by the ROA.

Unlock have set out our recommendations in more detail in this updated short briefing.

If you have any questions about our briefing or would like to discuss the issues we raise here, please policy@unlock.org.uk

We would also like to understand the issues faced by employers relating to recruiting and employing people with criminal records, so we have drafted this short survey and would like as many businesses as possible to complete it. Click here for the survey