Miski applied to a large, well-known employer and believed they would follow their published policy on recruiting people with criminal records. Here we look at how this employer approached asking, assessing and adhering to their own policy.

A couple of years ago I applied for a job at a large organisation famous for its inclusive values. Having unspent convictions for drugs-related offences, I was nervous about applying but the organisation’s online policy on recruiting people with criminal records was clear and seemed progressive. Although applicants were asked to disclose unspent convictions on their application, the policy said:

At interview, or in a separate discussion, the recruiting manager will ensure that an open and measured discussion takes place on the subject of any offences or other matter that might be relevant to the position.”

The job was a specialist role and I was well qualified so decided to apply, ticking the box for ‘unspent convictions’ and indicating that I’d discuss the details at interview. I expected to hear nothing back, so I was delighted to be invited to interview.

The interview was in two parts – a presentation, followed by a panel interview with the line manager, a director and three staff from other teams. The interview lasted for three hours in total and I travelled over 100 miles there at the employer’s expense. On arrival, an HR administrator filled out forms on my right to work and travel expenses, but at no stage was I asked about my criminal record. Naively, I thought maybe they’d decided it wasn’t relevant. The organisations people-centred approach seemed to be underlined when the senior manager explained that they aimed to let candidates know their decision within 48 hours. When I left I felt hopeful and optimistic; even if I didn’t get the job, it was good to know that some employers took an enlightened approach to applicants with criminal records. I’d heard such horror stories.

True to his word, the senior manager contacted me that evening and offered me the post. He explained that HR would be in touch to discuss salary and a start date, and that he was aware I had disclosed my conviction so there would be some additional paperwork to complete. The following day, I completed the paperwork sent by HR and then I waited.

After a week, I contacted HR and was told ‘don’t worry, we’re just doing checks.’ They didn’t say what checks. After another week, I wrote again and was told ‘no news’. A few days after that, a short email arrived with the title:

Application not progressed’

No reason was provided, and I asked several times for an explanation before receiving a response. They eventually admitted they’d done online searches. I knew what was there – the usual tabloid stuff, a link to a racist website and some local news. I never thought it would be part of a recruitment decision, especially by an organisation like this. But they were adamant:

…you may feel that material in the public domain does not contain all of the facts but we have to take into consideration how the media and public may respond to your appointment and that response will also be based on that information.”

This seemed at odds with the published policy: there had been no ‘open and measured discussion’ and the things they said they’d consider –

• Whether the conviction is relevant to the position in question;
• The seriousness of any offence;
• The length of time since the offence occurred;
• Whether the applicant has a pattern of offending behaviour;
• Whether the applicant’s circumstances have changed since the offending behaviour, and
• The circumstances surrounding the offence and explanation(s) offered

wasn’t mentioned at all. It seemed my criminal record was not a problem for the employer, but the fact that other people could find out about it was. I had been offered the job, and the policy was clear that:

Where a job offer has already been made, we will undertake to discuss any matter revealed with the person seeking the position before withdrawing a conditional offer of employment.”

I tried pointing this out, but was met with a wall of silence, eventually receiving a brief ‘Our decision is final. I do not intend to discuss this matter further.’

There is nothing to stop an employer discriminating against me because of an unspent conviction, but the fact they did so simply because I can be found online seems unfair. Especially when their brand is built on being inclusive. Can a big organisation really suffer reputational harm because it gave someone a second chance?

By Miski (name changed to protect identity)

Comment from Unlock

On the face of it, this employer had a reasonably fair approach to applicants with criminal records. Although asking on application forms is usually unnecessary, the employer does explain that applicants will have the chance for an open and measured discussion and that a conditional offer would not be withdrawn until after a discussion with the applicant. We advocate this approach in our self-disclosure guidance to employers. So what went wrong for Miski?

Asking

As our guidance on self-disclosure makes clear, applicants should only be asked about criminal records when it’s necessary and it will not usually be necessary on application. 125 companies have signed up to Ban the Box because they recognise that people with criminal records can enhance their business. For those employers, it means not asking until interview stage, or after an offer has been made. This doesn’t mean they won’t sometimes reject applicants because of a criminal record but it does mean they’ve given thought to how to deal with them fairly. Necessity will depend on the employer’s approach, but will generally be at interview or offer stage.

The employer should have avoided asking at application stage, but that made no material difference – Miski was offered an interview anyway. The problem arose when the employer failed to follow their disclosure policy and even introduced a new element – checking material in the public domain. Lots of employers do this, but they should make it clear to applicants if this is part of the recruitment process and be clear about how information is assessed and used. It may breach data protection principles (c) – as the employer acknowledges, information in the public domain may not contain all the facts so they cannot be certain it is accurate. Not every criminal case makes the news, and it is unlikely that any reports will contain all the facts. Using material in the public domain without informing applicants could also be a breach of the ‘fairness’ element of data protection principle (a).

Assessing

Applicants may sometimes disclose criminal records that make them unsuitable, but employers should consider their policy and approach to avoid situations like Miski’s. Staff time was wasted and, ultimately, the best candidate on merit – Miski – was not employed, because of the perceived reputational risk. None of the factors in the policy were considered.

Adhering

Like many organisations, the employer in this case had copied and pasted their policy form the DBS sample policy. While this means it’s legally compliant, using an off the shelf policy means an organisation has given limited thought to how it will work in practice. In Miski’s case, the policy wasn’t followed. More than that, new elements – checking of material in the public domain – were introduced. This suggests the employer had limited experience in recruiting people with convictions, and little regard for their own policies. If reputational harm is a factor in recruitment, employers should consider how best to manage disclosure and assessment. Post GDPR, they must also be clear about what information will be collected and why – use of information in the public domain could be considered excessive.