4. Asking the right questions

Previous chapters in this toolkit have highlighted the issues posed by asking every applicant about their criminal records. This creates barriers to access (more greatly affecting those already at disadvantage), and is likely unlawfully disproportionate gathering of data.

We believe that to be legally and Fair Study compliant, providers should not ask every applicant about their criminal record. Instead, providers might ask applicants:

• About relevant criminal records on access to certain, specific parts of an institution where there is an established and clear purpose for this information (ie university accommodation)
• About restrictions relating to criminal records that might impede studies (eg licence/ bail conditions).
• If a provider can offer support in relation to a student’s criminal record, they could ask questions about criminal records which will inform this support.

Providers should advise applicants what they will be asked, before they apply.

Yet, where a provider determines that they need to ask applicants about criminal records, there are numerous ways to make this process more inclusive, effective, and compliant.

Asking the right questions ensures that providers collect the information that they need, and do not collect information they don’t need or aren’t legally entitled to. If the question is unclear, applicants may feel uncertain what they are being asked. This can lead to over-disclosure, and means that the provider may be collecting data unlawfully. It can also lead to under-disclosure, whereby the provider does not get the information it has determined it needs.

The following guidance relates to access for non-regulated courses.

Questions should be:

Legally compliant

There are legal restrictions on what you can ask with regard to criminal records. This will vary depending on the purpose of the question and the context. Providers should not be asking for more information than they are legally entitled to request.

Supportive

Remember that questions about criminal records can be discouraging and upsetting. Receipt of this question might be the first time an applicant learns they will need to disclose their record in order to enrol. It’s important that this page (or email, letter, etc.) is written inclusively and offers information about a provider’s approach to criminal records.

Transparent

Respondents should be directed to further guidance that explains why the question is asked. It should explain how the answer will be treated. There should be information available as to how any data disclosed in answering this question will be managed.

Clear

Clarity can be ensured by detailing what you are not asking for as well as what you are. Keep the primary question concise. Follow with a ‘guidance note’ that explains the question in more detail.

Connected to further guidance

Provide links to your policies and procedures, and external organisations who can support applicants. If you can provide a confidential contact within your institution that applicants can contact with any queries, provide their contact details.

Specific scenarios and questions

Asking about restrictions

Asking about restrictions that may impact study can be a proportionate means of supporting student success, provided it is done in observance of legal obligations and managed carefully.

It can also be an important way for providers to work with statutory services. Where an applicant/student is subject to restrictions, these will have been put in place in order to help an individual mitigate their risk of re-offending. Asking about restrictions is therefore likely to give providers the most relevant information they need to manage any risks.

Restrictions that might affect study could include things such as:

• Curfews
• Mandatory appointments/engagement with services
• Restrictions on who an applicant can associate with
• Restrictions on use of IT systems

Providers should ask about restrictions after someone has been assessed for their academic suitability for a course. The exact timing of the question will vary depending on each provider’s enrolment process.

Asking about criminal records