Unlock started running a project in 2015, supported by the Esmée Fairbairn Foundation, which focuses on challenging the discrimination that people with convictions face in employment. This brief document outlines the scope of the work that we are doing.

The approach of the project is to ‘support and challenge’. This builds on our track-record of working with Government, employers and others. It also plays to our strengths as an independent advocacy charity in holding organisations to account and speaking truth to power.

 

Outcome 1 – Employers have fair and inclusive policies and procedures that support the recruitment of people with convictions

We are:

  • Supporting larger employers in implementing significantly fairer and more inclusive policies and procedures, working with a range of existing employer networks such as ‘Ban the Box’ and ‘EFFRR’
  • Developing and maintaining a resource centre for employers and recruitment professionals
  • Challenging employers who act unfairly and/or unlawfully, improving their practices as a result

Find out more about the above work here.

  • Challenging employers who breach the Rehabilitation of Offenders Act by carrying out unlawful criminal record checks or unlawfully take into account spent convictions. Find out more about this work here.

 

 

Outcome 2 – Criminal record checking processes operate more fairly for people with convictions, and tightened so that employers are unable to carry out ineligible checks

We are:

  • Pushing for individuals to be able to get a copy of their DBS check before applying for jobs, and for the DBS to introduce a basic disclosure service
  • Working with the DBS to ensure they advise people with convictions accurately, and consider them as a key stakeholder when making changes that have a specific impact on them
  • Monitoring the volume and type of checks carried out by the DBS, and publish data to show trends and highlight issues that adversely affect people with convictions
  • Pushing for the introduction of a freely available online eligibility tool for both employers and individuals which determines what level of check that can be carried out.

Find out more about the above work here.

 

Why is this project important?

People with a criminal record are a sizeable group

  • There are over 10.5 million people with a criminal record on the Police National Computer
  • Only 8% of people that receive a conviction end up going to prison
  • There are over 1.2 million individuals that receive a conviction every single year
  • A significant number of people (205,000 each year) receive cautions instead of convictions

The importance of employment

  • Stable and secure employment plays a key role in former lawbreakers not only ‘going straight’ but ‘staying straight’  and reaching their true potential.
  • The UK Government’s own Social Exclusion Unit reported that ‘employment reduces the risk of re-offending by between a third and a half’.
  • People with convictions make up a sizeable proportion of the unemployed population – 33% of Job Seekers Allowance claimants received a criminal record in the last ten years.

 

The negative attitudes and practices of employers

  • People with convictions are the least likely ‘disadvantaged group’ to be employed – only 12% of employers have knowingly employed one in the last three years.
  • In a survey by Working Links, more than half of employers said that the disclosure of an unspent conviction would have a negative effect on their recruitment decision, even if the candidate was considered equal to other candidates in all other areas. Around a sixth stated that they would automatically exclude a candidate with a previous conviction.
  • Many employers have recruitment policies and practices that request details of criminal records in a misleading, confusing and unnecessarily discriminatory manner. Often employers don’t make it clear that, for most roles, applicants don’t need to disclose spent convictions. For instance, Biffa, the waste disposal company, asks on their application form: “Have you got any convictions?” without informing applicants that they do not need to disclose convictions that are spent.
  • Royal Mail has a stated policy not to recruit any applicant who has an unspent conviction for a huge range of offence categories, without looking at the sentence received or how long ago it was.
  • 53% of employers have no policies in place in relation to people with convictions, and only 1% of employers have policies in place to encourage the employment of ex-offenders.
  • Yet 38% of employers have a company-wide policy to ask if a candidate has a criminal record.
  • “HR teams mostly use template application forms, and online templates that are frequently adopted will include this box”, according to Business in the Community (BITC). This ‘tick-box’ acts as a barrier to entering employment for many people.
  • Removing this ‘tick-box’ has shown to have a positive impact. ‘Banning the box’ has had success in the USA, led there by the National Employment Law Project. In the city of Minneapolis, where the City Council banned the box, 57.4% of applicants with convictions in the last seven years were hired (2007-08), compared to just 5.7% hired before the box was removed (2004-6).

Problems can also often arise later in the recruitment process, where individuals are treated unfairly, albeit not necessarily unlawfully. For example, an Unlock client obtained a job with a prominent ‘offender learning’ company after disclosing his convictions, only to be dismissed 3 months later due to his record. Unlock is also unaware of a single case where an employer has been prosecuted for breaching the Rehabilitation of Offenders Act by using spent convictions as a reason for dismissal or refusal to appoint. Through our helpline, we have an ‘ear to the ground’ on what practices are taking place, and there are four key areas where some employers continue to operate illegal practices:

  1. Breaching the Rehabilitation of Offenders Act – For roles covered by the ROA, many employers continue to require the disclosure of ‘all convictions’ (or any) (ignoring the provisions of the Rehabilitation of Offenders Act 1974) and use this information as part of their risk assessment process.
  2. Submitting ineligible checks – For roles covered by the ROA, some employers carry out illegal DBS checks (which is an offence under the Police Act) yet no employer has been held to account for this type of practice. A conservative estimate by Unlock is that approximately 2% are ineligible.
  3. Breaching the Police Act regulations – For roles entitled to standard and enhanced checks, many employers continue to require the disclosure of ‘all cautions and convictions’ (ignoring the filtering regime) and use this information as part of their risk assessment process.
  4. Use of other forms of vetting – Some employers continue to use police records – this is known as ‘enforced Subject Access Request’ and, following Unlock’s lobbying of the ICO and the MoJ, this finally became a criminal offence in March 2015.

 

The growth of criminal record checks

Improving the way that employers deal with information about ‘unspent’ convictions is only part of the problem. Recent years have seen a substantial increase in criminal background checks, usually used for employment purposes. The Disclosure and Barring Service (DBS) is responsible for the formal system of sharing information on ‘spent’ convictions, and was set up to provide employers with details about the criminal records of their (potential) employees. Worryingly, the DBS’s strategic ambition is “to enhance and expand DBS service provision to be the Government’s Centre of Excellence for suitability information”.

There were 1.2 million DBS checks in 2002 ; this rose to 3.9 million in 2013/14.

However, the DBS does not offer a ‘basic’ disclosure service (that is, one which only reveals ‘unspent’ criminal records). This means employers in England and Wales have to use a service provided by Disclosure Scotland. Very often, employers believe they can only get a standard or enhanced-level check and are therefore much more likely to use them instead of basic checks. Many of the positions to which these checks apply are not exempted from the ROA, meaning that employers and voluntary groups assess candidates on the basis of criminal record data to which they are not lawfully entitled. In total only 20% of all criminal record checks are basic checks. The Governments flagship GOV.UK website has a guidance section for employers on criminal record checks. Unfortunately, this only contains details of standard and enhanced checks (not basic ones) , as it is the DBS that has provided this content. Despite challenge by Unlock, the Government has refused to include information about ‘basic’ disclosures. The DBS include, in their 2014-17 Strategic Plan, the aim of introducing basic disclosures in 2016/17. A similar commitment has been in their business plan every year since 2002.

Generally, the DBS doesn’t see its role as ‘advising’ people with convictions – we regularly gets reports of people being told to by the DBS customer services helpline to “ring Unlock” about issues the DBS should be advising individual applicants about. Furthermore, the DBS continue to operate a premium-rate phone number (0845) for their helpline, despite this being against Government guidance and out of kilter with similar agencies (such as the DVLA, which has a free 0300 number).

There remains no way for these individuals to know for certain what will be disclosed on a standard or enhanced check. This is due to the technical legislative wording in the Police Act 1997, which introduced the current system of criminal record checking, and which stated that checks were intended for employers. Until recently, this didn’t cause too many difficulties, because individuals could instead apply for a copy of their own police record. However, since May 2013 the DBS operate a ‘filtering process’ which removes some convictions and cautions. In its first year of operation, this process ‘removed’ convictions from 29,000 checks. Yet this represents only 15% of the 188,000 applications that reveal a conviction, meaning over 159,000 checks were still disclosed with at least one conviction on them. Many of these individuals will have not known for certain what would or wouldn’t have been disclosed. The result being ‘over-disclosure’ or ‘under-disclosure’ – neither being an ideal outcome. With the criminal records regime constantly changing, and likely to change even more in the future with pending challenges (including by Unlock) to the new ‘filtering’ process, access to one’s own criminal record is of paramount importance. To resolve this, an amendment to the Police Act would be required.

 

The problem of illegal checks

Given that around 75% of checks that are done are at an enhanced level, it is clear that, although ‘standard’ and ‘enhanced’ checks were designed to be the ‘exception’, they are very much now ‘the rule’ when it comes to formal vetting for criminal record checks. Some employers carry out enhanced checks on all job applicants, which exceeds what they are entitled to do. “Enhanced DBS checks are carried out on all staff” is the statement of many employers. Employers who undertake unlawful checks or discriminate against people with spent convictions face no sanctions. Through our helpline, we know anecdotally that many checks are ineligible. The extent of ineligible checks is unclear. However, given that 188,000 individuals had convictions disclosed on standard and enhanced checks in 2013/14, if only 2% of checks are ineligible, that would still equate to 4,300 individuals every year who have a conviction disclosed to an employer when it shouldn’t have been. One reason for ineligible checks is confusion about what is and isn’t eligible. Over 4,500 enquiries to the DBS helpline last year were about eligibility. In a briefing paper that Unlock produced for the DBS in 2010, we highlighted the need for an online eligibility tool, which the DBS committed to producing that year. This is still yet to be launched, and appears to have been shelved by Government. In the meantime, employers are left to their own devices.

The problem of illegal checks is further exacerbated by the fact that the DBS do not take any legal responsibility for establishing that a standard or enhanced criminal record check is required – they claim to have a “duty to process” requests by employers. Moreover, the DBS fails to enforce s.123 (1) of the Police Act 1997 (which makes ineligible checking a criminal offence) or to de-register organisations that fail to follow the Code of Practice on this issue. Despite organisations registered with the DBS apparently being subject to regular monitoring by the DBS, and despite a wealth of evidence to suggest ineligible checking, we discovered in a Freedom of Information request that Unlock made in September 2012 that no Registered Body had been de-registered as a result of submitting ineligible applications in the last five years, they had made no referrals to the Police for investigation into potential ineligible applications, and no registered bodies had been prosecuted for submitting ineligible applications.

 

Interested?

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Download a project brief as a PDF here.

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