Should criminal records be sealed from employers?

A review issued last month from MP, David Lammy, suggested that criminal offenders should be able to hide their criminal records from potential employers. Lammy included this as a recommendation in an independent report on the treatment of Black, Asian and Minority ethnic (BAME) individuals in the criminal justice system.  In the UK, over 11 million people have a criminal record and only 26.5% of them enter employment after the are released. The review argues that many struggle to find employment due to employer’s wariness of hiring ex-offenders.

Current criminal background checks

Currently, employers can carry out or request criminal record background checks on new employees. The types of criminal record checks are dependent on the job role being carried out by the new employee.  ACAS and GovUK both underline the types of checks available and the most common type is a Basic Disclosure. An employer can request an individual to apply for a Basic Disclosure or with the individuals consent, the employer can apply for it directly. Under the Rehabilitation of Offenders Act 1974 (ROA), cautions, convictions, reprimands and final warnings can be considered spent after a specified period of time This check therefore only shows convictions that are considered ‘unspent’. The other type of check is a Standard Disclosure which can only be carried out for roles that are exempt from the ROA. These checks cover particularly sensitive roles and prevent unsuitable people working with vulnerable groups or in a position of trust.

Should criminal records be hidden from potential employers?

Lammy’s review however argues that employer’s access to criminal records are unfairly impacting on ex-offenders’ abilities to find employment. In fact, a 2016 YouGov survey revealed half of employers surveyed would not consider hiring an offender or an ex-offender. The review does not suggest however that criminal records should be completely ‘wiped’. It suggests that ex-offenders should be given the chance to apply to a judge or parole board to prove they have reformed. Their criminal record would therefore still exist but it would mean that ex-offenders would not have to disclose it and employers would be unable to request access to it. The decision made would depend on the evidence surrounding the individual’s rehabilitation, and the time that had passed since the offence took place. Lammy argues that finding employment is a crucial stage in the rehabilitation of offenders and in reducing re-offending. He stated that ‘’our criminal records regime must protect the public, but it is having the opposite effect and trapping offenders in their past’’.

Ban the Box, a campaign run by Business in the Community, encourages employers not to discriminate against potential candidates with a criminal background. In particular, they are urging employers to remove the criminal record tick box from job application forms. They argue that not only can it help improve ex-offender’s employability and remove barriers for them getting back into the workplace but that it can also bring benefits to the organisation.

In addition to this, the new General Data Protection Regulations (GDPR), which will come into effect in May 2018, will not permit employers to carry out basic disclosure checks on potential employees, even if they have their consent. The government, however, has published the Data Protection Bill which supplements the GDPR and intends to allow employers to still be able to carry out these checks provided they meet the outlined requirements.

Are employers still wary?

On the other hand, some employers remain wary about employing ex-offenders. Over 3 quarters of employers admit to discriminating against candidates who have a criminal record.  CIPD argue that this is due to employers being concerned about the potential negative impact on the business’ reputation, the threat to security and wanting to prevent harm. Employers also have concerns over ex-offenders’ working attitude – they worry that ex-offenders could be dishonest and unreliable workers.

Overall, can employer’s perceptions and attitudes towards ex-offenders be easily changed to allow a more inclusive society for ex-offenders? Or should employers be entitled to access employee’s criminal records? It will be interesting to see what happens in the future.

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