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Author: Rachel Tynan

Applying for a job with probation? Do you know what you need to disclose?

People with criminal records are often keen to use their experience to help others in prison or on probation. Lived experience of the criminal justice system is now recognised as an asset by many employers in the sector – including Her Majesty’s Prison and Probation Service (HMPPS).

Last year they published the Probation Workforce Strategy 2020-2023 which states their intention to select the most capable candidates regardless of their background and enhance their recruitment approach to attract the right people in the right places, including ex-offenders, where appropriate, and those with broad and varied life experience.

HMPPS are now recruiting probation officers so if you are interested in helping others move on positively in their lives, now is your chance.

Knowing what to disclose

If you’ve got a criminal record and you’re applying for a new job or volunteering role, it’s always important to know if and what you need to disclose.

Make the mistake of over or under-disclosing and you run the risk of your application being unsuccessful.

Prison and probation roles are exempt from the Rehabilitation of Offenders Act 1974 so cautions and spent convictions can be taken into consideration. You will need to disclose these during the application process. However, these jobs are not exempt from the filtering rules and applicants do not need to disclose filtered cautions or convictions.

Find out if your criminal record is filtered

Some cautions and spent convictions can become ‘protected’. Once protected, they are ‘filtered’ meaning they won’t be disclosed on standard or enhanced DBS checks.

Filtered cautions and convictions do not appear on a standard or enhanced DBS check and don’t need to be disclosed (except for a very few jobs – see below). However, they are not ‘removed’ or ‘wiped’ from police records.

The filtering rules changed in November 2020 so use our guidance to work out whether your caution or conviction is filtered.

Are any jobs exempt from the filtering rules?

There are a small number of jobs that are exempt from the filtering rules but these do not include jobs in the prison or probation service. The application of these rules to sensitive employment – namely as a police support worker – was tested in court in 2017.

Jobs that are exempt from the filtering rules include:

  • judicial appointments
  • constables and police cadets
  • employment in the Serious Fraud Office or National Crime Agency
  • HMRC Commissioners
  • The Official Solicitor and their deputy
  • certain appointments to the office of Public Trustee
  • any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004.

Do I need to disclose a filtered criminal record for a probation role?

The recruitment site says:

You must disclose all convictions, cautions and absolute or conditional discharges – however long ago they occurred

But this is not quite right.

Prison and probation roles are covered by filtering rules, meaning applicants are legally entitled to withhold this information. We contacted HMPPS’s Operational Support Group to confirm. They told us that:

Filtered cautions and convictions do not need to be disclosed, as these are not considered as part of the vetting decision making process.

As the vetting process does not take into account filtered cautions/convictions, collecting this information could be considered excessive and therefore a breach of the General Data Protection Regulations.

For more information

Taxi! New guidance for licensing authorities recommends exclusions for even minor convictions

In July 2020 the Department for Transport published new guidance for statutory taxi and private hire vehicles licensing authorities. This followed a consultation in April 2019 to gather views on the recommendations and draft statutory guidance. Recommendations included that licensees undergo enhanced DBS and barring list checks and minimum exclusion periods by offence category and our response focused on those exclusions.

Passengers getting into a taxi or PHV are placing themselves in the hands of the driver and it’s right that licensing decisions take into account all relevant information. The problem is, the draft guidance didn’t advise taking into account all relevant information. Instead, it proposed a blanket approach based on broad offence categories.  The guidance was based on the Institute of Licensing’s 2018 recommendations which emphasised the need to consider individual circumstances but then went on to propose blanket exclusions based on broad offence categories, along with lengthy exclusion periods.

Unfortunately, the final version of the guidance includes the same offence categories and exclusion periods recommended in 2018. The long exclusion periods are not scaled to the circumstances or gravity of an offence – a person convicted of possession of a firearm will be refused a licence for seven years, the same as a person who over-claimed benefits. An applicant with a conviction for common assault where the victim sustained no injuries would be treated the same as a serious assault in which a victim required surgery and refused a licence for at least 10 years.

Department for Transport has published a summary of responses to the consultation and acknowledged that

The proportionality of some of the baseline exclusion periods was questioned by some respondents, as was the range of offences that would fall under a particular heading.

However, they went on to say that:

The final version provides additional clarity and reinforces that the decision as to whether a person who has convictions should be licensed is and will remain dependent on the individual circumstance of each case.

Licensing authorities are not bound by the guidance but it would be a brave authority that would strike out on its own. Indeed, the president of the Institute of Licensing, James Button, is keen for the guidance to become law. In a comment to the Daily Mirror, he said:

In most authorities, when someone has previous convictions which fall outside that council’s policy, the decision is made by councillors. They can be swayed by sob stories. It has always surprised me why there is acceptance of a level of criminality among a significant minority of the taxi trade.

We can’t be sure what Mr Button would consider ‘a sob story’ but the proposed exclusions would mean a woman with childhood convictions for soliciting, as a result of child sexual exploitation would be treated the same as a man with a recent conviction for rape, and prevented from ever obtaining a licence. That same woman, if she had convictions for possession of a weapon or affray, would be refused a licence for a minimum of 7 to 10 years after the conviction, regardless of the circumstances. One such woman, Sammy Woodhouse, bravely waived her right to anonymity and spoke out on behalf of others still having to disclose criminal records acquired as a result of their abuse. Ironically, the guidance also recommends that drivers are trained in safeguarding and spotting signs of criminal or sexual exploitation.

In principle, a national framework can help with consistency – and let applicants know what to expect. We support clear guidelines to assist licensing authorities. This guidance, if taken up by local authorities, means law abiding people with convictions are likely to be unnecessarily excluded from the trade for years, or indefinitely. That has a ripple effect, reinforcing the idea that everyone with a conviction is a danger to the public. Thankfully this is not true – there 11 million people in the UK with a criminal record – about 1 in 6 of the population. Most want to move on positively with their lives, and they deserve a fair chance to do that.

Written by Rachel Tynan, Policy and practice lead at Unlock

New report highlights potentially hundreds of unlawful criminal record checks by employers each year

Unlock, a national advocacy charity for people with criminal records, has today published Checked out?a report on so-called ‘ineligible’ criminal record checks, submitted by employers and processed by the Disclosure and Barring Service (DBS).

The Rehabilitation of Offenders Act 1974 allows some criminal records to become spent after a crime-free period. This means they are no longer disclosable – for example to employers – enabling people to move on and positively and contribute to society. For jobs working with children and vulnerable adults, spent criminal records must still be disclosed.

In 2019/20, the DBS carried out more than 4 million checks at the higher levels of enhanced or standard. Unlike basic checks, these disclose cautions and spent convictions and are legally permitted only for specified jobs and professions such as teaching, social work, accountancy or law. Carrying out a check at a higher level than permitted can be a criminal offence and a breach of data protection laws – exposing employers to financial and reputational risk. It unnecessarily prevents people with spent criminal records from gaining employment.

Despite the introduction of basic checks in 2018, Unlock’s helpline has seen a 25% increase in calls about ineligible checks. The report highlights the significant impact ineligible checks have on the lives of law-abiding people with criminal records – it estimates that over 2,000 people a year have to deal with the consequences of a caution or conviction unlawfully disclosed to an employer.

Responsibility for ensuring eligibility rests with the employer and the DBS trusts employers to request the right checks. The law is complicated, employers are rarely trained, and many show a blatant disregard for selecting the appropriate level of check. There is almost no chance of accountability and law-abiding people with criminal records are needlessly kept out of the workplace.

The report makes recommendations for government, the DBS and employers to prevent ineligible checks. These include amendments to the Police Act so employers and the DBS share liability for ineligible checks, legal protection for spent convictions and an urgent review of DBS processes for preventing ineligible checks.

Commenting on the report, Rachel Tynan, Unlock’s policy and practice lead and co-author of the report, said:

“Law abiding people with criminal records are struggling to find work as some employers are breaking the law to find out whether potential employees have ever broken the law. Ineligible checks are usually only carried out after offer, meaning the candidate has been chosen as the best person for the job, only to be rejected for an old or minor criminal record they are entitled to withhold.

“That’s bad news for them, their families and the economy – it’s got to change. This report sets out a number of recommendations to government, the DBS and employers that would turn the tide, prevent ineligible checks and improve compliance.”

For more information about the report, please contact Rachel Tynan. Email rachel.tynan@unlock.org.uk.

Notes

  1. Unlock is an independent national advocacy charity for people who are facing obstacles, stigma and discrimination because of their criminal record
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s main website is unlock.devchd.com.
  4. Download the report here: Checked out?
  5. The report has been published as part of Unlock’s fair access to employment project.

Background

  • In 2019/20, the DBS carried out 5.9 million criminal record checks – 3.86 million enhanced and 326,000 standard checks, along with more than 1.7 million basic checks. Basic checks are available to any employer (provided they set out their lawful basis for checking). Standard and enhanced checks are only available for professions or roles exempt from the Rehabilitation of Offenders Act 1974.
  • A basic criminal record check reveals convictions and cautions that are unspent under the Rehabilitation of Offenders Act 1974. A conviction or caution is unspent for a period of time, determined by the sentence. Once a conviction or caution is spent, it no longer appears on a basic check. However, higher levels of checks (standard and enhanced checks) continue to disclose spent convictions and spent cautions. Only when a conviction or caution meets an additional set of strict technical rules can a conviction or caution be removed from a higher level of check, in line with the ‘filtering rules’.
  • The term ‘ineligible check’ refers to checks carried out at a higher level than permitted in law. This could mean an enhanced check where only standard is permitted, but the more common problem is requesting a standard or enhanced check where only a basic is permitted.

Case studies

Darren

Darren’s minor convictions were from 30 years ago and long spent but, as there was more than one conviction, they were not eligible to be removed (or ‘filtered’) from his enhanced check. He contacted us for advice when a job offer from his local council was withdrawn following what he believed to be an ineligible enhanced DBS check.

During our correspondence with the council it became clear that there was a misunderstanding of the type of work that would be eligible for an enhanced check. They said:

“Although the DBS is saying we only need a basic check, there may be opportunities that the team may have contact with children or vulnerable adults in their work and the fact that the majority of the team currently have enhanced DBS checks, then it may be a good idea to stay at this level. For example, a car parking officer may have to approach a car where a young child has been left alone”.

We went back to the council to confirm that approaching a car which has young children in wouldn’t make this type of role eligible for an enhanced check and explained the purpose of these checks. The council reviewed the role and agreed that a basic check was more appropriate but by the time the review was complete, Darren had taken another job.

Darren said: “Had the correct level of check been done in the first place, I would have been able to start the job. It took so long for them to acknowledge their mistake and I couldn’t keep waiting without a job. It’s disappointing that a big organisation like the council didn’t understand what type of checks they could do.”

Dennis

Dennis was a driver for an out of hours doctor’s service, driving doctors to appointments and waiting whilst they attended to a patient. Rarely, he chaperoned whilst the doctor carried out a procedure on the patient – this had only happened twice in the previous year.

After several months in the job, the employer decided to carry out an enhanced DBS check for his job. Dennis did not believe the job was eligible but felt he had no choice but to agree. Before the check was submitted, Dennis disclosed details of his criminal record and was suspended by his employer.

On reading the job description, we agreed that his job would not appear be eligible for an enhanced DBS check. To be eligible, he would need to be performing chaperone duties once a week or more, or at least four days in a 30 day period. In any event, Dennis was always accompanied by a medical professional who had been DBS checked and had overall responsibility for the patient. We provided Dennis with information and advice on challenging the check and offered to speak with his employer.

The employer carried out an investigation into Dennis’s concerns and confirmed that the job was not eligible for an enhanced check and they would update their policy to reflect this.

Dennis said: “I knew the job didn’t require an enhanced check and I’m pleased that [his employer] recognised that. I wanted to share my story so other people might feel they can challenge bad practice at work too.”

Danny

Danny contacted us for advice when his employer, a company selling disability aids, requested an enhanced DBS check for his role as a driver/technician, stating that he would be required to instruct and train ‘vulnerable’ adults in the use of the equipment he was delivering. Danny hadn’t received training in using equipment and, in the few weeks he had been working there, had only delivered pillows, walking sticks and wheelchairs. He felt the job would probably only require a basic DBS check and wanted to know how he could challenge the company. He had a spent conviction which he had not disclosed when applying for the job, as he was led to believe that it was a delivery driver job which would not be eligible for an enhanced check.

Danny had no choice but to agree to the enhanced check and then raise it with the DBS. He told them other drivers doing the same job were also undergoing enhanced checks. The DBS confirmed that they had put his application on hold whilst they investigated the eligibility of the check but could not do the same for the other drivers.

The DBS told Danny that his employer had given his job title as an Outreach Support Worker. This did not match his job description, qualifications or experience. He was told that the DBS did not question job titles with requesters and, on the job description provided, the role was eligible for an enhanced check. Danny decided that the only option open to him would be to arrange to speak to his employer about his conviction – who immediately terminated his contract.

Danny said: “I wouldn’t have applied for a job as a support worker – I’ve got no experience or interest in that type of work. As far as I was concerned, it was a driving job, dropping things off at the front door. None of the other drivers trained anyone either.

The DBS would not investigate why Danny’s employers provided a different job description to the one being performed. Had they investigated the other drivers’ roles and found all of them raising the same objections, they might have reached a different decision.

Reforming the criminal records disclosure regime – Have you a sentence of over 4 years in prison?

We’ve published an updated briefing on reforming the criminal records disclosure regime and we want to hear from you if you have a conviction that can never become spent.

The Rehabilitation of Offenders Act (ROA) means that most convictions can become spent after a period of years. Changes implemented in 2014 (through focused mainly on reducing rehabilitation periods. However, the current law means more than 8000 people every year receive sentences that mean they can never be legally rehabilitated and will have to declare them for the rest of their life – on job applications, for housing or insurance.

A never spent conviction is a lifelong barrier to moving on. We think this should change and that’s we we’re campaigning for ROA reform. As part of our campaign, we use case studies to show why reform is necessary to help law abiding people with convictions move on.

What we need from you

If you have a conviction that can never become spent (i.e. a prison sentence of over 4 years), please contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ROA reform’. Please include:

  • Your name
  • Your date of birth
  • Contact details (email and/or telephone) and how you’d like us to contact you
  • The details of all your cautions/convictions including dates and a DBS certificate if you have one
  • The difficulties you’ve faced, recently or in the past, as a result of your criminal record not becoming spent
  • If you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data

Find out more about our work on ROA reform.

Has an employer wrongly carried out a standard or enhanced DBS check?

As part of our fair access to employment project we’re gathering information on employers who have carried out standard or enhanced checks where only a basic is legally permitted.

For some jobs, employers are allowed to consider cautions and spent convictions (unless they have been filtered). Employers recruiting for these jobs are legally permitted to carry out a higher level DBS check – a standard or enhanced check. Both checks disclose cautions, spent and unspent convictions and enhanced checks may also include additional “soft intelligence” held in police records. It is a criminal offence for an employer to knowingly request a check at a higher level than the law permits.

Find out more about eligibility here.

What we need from you

Has an employer has carried out a standard or enhanced criminal record check for a role that wasn’t eligible?

Have they taken into account spent convictions or other information that they were not entitled to see (so called “soft intelligence” or “local police information”?

If so, please contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ineligible DBS check’. Please include:

  • The name of the employer (or umbrella body if relevant) that did the check
  • The job title of the role you applied for, and a description of the responsibilities
  • A copy of the job advert (if available)
  • The full details of your criminal record
  • Details of any correspondence with the employer about the check – for example, did they tell you it was necessary for the role you were applying for and, if so, did they say anything else about why?
  • Details of what happened when the disclosure certificate was given to the employer
  • Whether you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent. To help us provide you with the best advice, we may discuss your case, anonymously, with legal practitioners.

Find out more about how we handle your data.

Find out more about what we do with your experiences and evidence.

Bad policies and practices by employers

As part of our fair access to employment project, we work with employers to develop fair policies and practices and highlight good practice. We know that employers don’t always follow their own policy, and that sometimes decision making is subjective. We’re gathering evidence of bad practice and challenge this where we can – and we need your help to do this.

We want to hear your experiences of bad practice. In some cases, we will challenge employers directly. In other situations, we press for action to be taken by others including the DBS or the ICO. Where we’ve been successful in achieving changes in practice, we write the example up anonymously and post it on our website for employers to help employers learn where others have gone wrong. Ultimately, we want to see all employers operate fair and inclusive practices towards people with a criminal record.

Bad practice could include:

  • Asking about spent convictions for a job that is covered by the ROA.
  • Blanket policies of not recruiting people with unspent convictions
  • A ban the box employer asking questions on application
  • Carrying out DBS checks for roles not eligible for them
  • Requesting applicants provide a copy of their ‘police record’ (also known as ‘enforced subject access’)
  • Failing to give applicants an opportunity to explain their criminal record
  • Sharing information about criminal records without your consent (for example in references)

Take a look at some of the examples we’ve posted on our website for employers.

What we need from you

If you have experience of bad practice by employers, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: bad practice’. Please include:

  • Your name
  • Contact details (email and telephone) and how you’d like us to contact you
  • Details of your experience (please include the name of the employer and of any staff you spoke to, include emails/screenshots etc if possible)
  • What you think should change.
  •  Whether you’d be willing to take part in media coverage on this issue in future (this is for our reference only, we won’t share your details with others)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

Find out more about our work with employers.

What’s your experience of ban the box?

As part of our fair access to employment project, we are gathering evidence of employers’ approaches to people with criminal records. We work with employers to develop fair policies and practices and highlight good practice. Ban the box is a key part of helping people with convictions get back into the workplace, and we have called on government to place it on a statutory footing. We know this is only part of the answer though – employers need to have embedded fair recruitment practices to make ban the box effective.

We’re gathering evidence on how ban the box works in practice.

 

 

  • Did it encourage you to apply for a job you might not have otherwise?
  • Did you feel you were treated fairly?
  • Or maybe the employer claimed to support ban the box but had a blanket ban on unspent convictions?
  • Maybe it made no difference at all.

Whatever your experience, we want to hear about it.

What we need from you

If you have experience of applying to a ‘ban the box’ employer, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ban the box’. Please include:

  • Your name
  • Contact details (email and telephone) and how you’d like us to contact you
  • Details of your experience (please include the name of the employer and of any staff you spoke to, include emails/screenshots etc if possible)
  • What you think should change
  • Whether you would be willing to take part in media coverage on this issue (this is for our reference, we won’t share your details with others).

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

Blog – Looking to the future: incentivising employment of people with convictions

It’s fair to say 2020 has been a year of major change – and we’re only halfway through. Whether you’ve been adapting to home working, learning a new skill, or embracing your natural hair, we’re all dealing with change. That can be challenging but there’s a sense that this moment is a portal to the future.

Unlock’s helpline receives calls every day from people who want to change their future by applying for a new job, or a promotion. No matter what skills, qualifications or experience they have, they know that once they tick the box to say they have a conviction, there’s a good chance they’ll never hear from the employer again. Sometimes people get as far as the interview before being told ‘oh no, you can’t work here – we’ve got a policy about that’.

This week, Unlock have published a briefing calling on the government to use financial incentives to improve employment prospects for people with convictions.

There are more than 11 million people in the UK with a criminal record. Most have never been to prison and most will never commit another crime. Yet 75% of companies admit discriminating against applicants who declare a criminal record. In a 2016 survey, 32% of employers had concerns about this group’s skills and capability, 45% were concerned they would be unreliable and 40% were worried about the public image of their business.

These might seem reasonable concerns – but they’re just not accurate. Employers who pro-actively recruit people with convictions report positive experiences. Polling from 2019 shows that 81% of employers say hiring people with criminal records had a positive impact on their business, while 75% of consumers would buy from a business that hired people with convictions.

Exclusion from the job market has a significant effect not just on individuals and their families but also their communities. People from some ethnic backgrounds – particularly Black and Gypsy, Roma, Traveller – are over-represented in the justice system and face this additional barrier when looking for work.

Keeping people out of the work place because of a criminal record is unnecessary – and it’s expensive. People with convictions want to support themselves and their families, but unemployment has a scarring effect that can last a lifetime. Reoffending costs £18bn a year but targeted opportunities just for people leaving prison could reduce that by around 10%.

Financial incentives can be a powerful force for change. In Belgium, subsidies have improved employment prospects for disabled people, while a 2018 study in the US found that 80% of employers said a tax credit on a worker’s wages would encourage them to hire someone with a conviction.

None of us can predict what the future will bring but it’s going to need a collective effort. The more people in work, the quicker the economy can recover. Do we want to live in a country that excludes people because of their background, or one that sees what people have to offer and gives them a chance?

Download the briefing here.

Contact us for more information.

 

 

 

What’s the impact of Covid-19 on people with criminal records?

Covid-19 and the social distancing measures introduced to help control it are creating challenges for all of us. For people with criminal records, these challenges can be particularly difficult to overcome.

Since the UK went into lock-down, we’ve been contacted by many people with criminal records – those with criminal records in the community, people in prison and people who are subject to licence or community orders – concerned about what Covid-19 means in terms of their criminal record.

We’ve produced some new information for people with a criminal record which tries to answer some of the common questions we’re coming across. We may not have all the answers – this situation is new to us too – but we will be regularly updating it to ensure it has the latest information and advice on Covid-19 and how it impacts on those with a criminal record.

We have also started to bring together the emerging issues faced by people with criminal records. These include employment, housing and education, as well as DBS checks and supervision arrangements. We are looking carefully at the policy implications of Covid-19 and the social distancing rules, and at how these might affect people with criminal records in the future. You can read more here. We will keep this page under review and update this as things change.

We want our information and policy work to accurately reflect the challenges you’re facing and we need your help to do that by. We asked you to tell us about your experiences via a short survey – you can read the findings here.

With this evidence, we can raise the issues and call for solutions.

 

Unlock’s guest post for the Cabinet Office’s Life Chances blog

Going Forward into Employment is a government wide scheme providing employment opportunities in the civil service for people from a range of backgrounds. Prison leavers are one of the groups that can benefit from the scheme, and so far more than 30 people have taken up a civil service post after release. The Going Forward into Employment team have launched a blog series to share information on their work.

Unlock have contributed a guest post on the scheme’s work with prison leavers. Let us know what you think, or share your experiences of applying to the Civil Service by email  or social media.

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