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Hiring ex-offenders: The rules

It seems that a staggering, 9.2m people have criminal records in the UK, so this current standard recruitment sifting tool potentially rules out a large pool of untapped talent which reform could help to unlock.

With certain jobs, employers are also recognising the advantages of hiring ex-cons. This ranges from a suggestion by the Defence Secretary that hackers with a criminal past could be recruited to serve in the new military cyber force, through to a suggestion from the chairman of the Magistrates Association that ex-offenders could be a useful addition to the Magistracy. 

The current legal position

Over the last 40 years since the Rehabilitation of Offenders Act 1974, job applicants with criminal convictions are protected if they fail to disclose ‘spent’ convictions. The only exception to this rule is certain professionals (eg doctors and dentists).

Otherwise, if a job applicant conceals a former criminal conviction which is not ‘spent’ because they feel that is necessary to secure the job, a subsequent dismissal for false concealment is likely to be ‘fair’.

If the job applicant discloses there is an unspent conviction (eg by ticking a relevant standard question on a job application form), he/she will have no legal redress, because ‘offenders’ is not currently a protected characteristic for the purposes of unlawful discrimination.

As a result, as the Ban the Box campaign has highlighted, this standard recruitment sifting tool means that ex-offenders are effectively eliminated from recruitment opportunities at a very early stage, or forced to conceal their past offence, and to take a chance that it may later come to light and then lead to their summary dismissal.

The legal implications of the Ban the Box campaign

Whilst, as indicated above, the current sifting practice does not constitute unlawful discrimination, on the basis of the US scheme, the proposed change in the law may indeed result in a marked increase in the recruitment opportunities for applicants with recent, unspent, convictions.

That said, for the employer, it will be necessary to spell out that any job offer is conditional on a clean record, in the same way as other standard conditions such as a good reference and clean CRB check. 

Otherwise the employer would be vulnerable to contractual claims from an applicant who had accepted a job offer only to find it was then withdrawn on the disclosure of unspent convictions later in the recruitment process.

In sectors where there are skills shortages, a change like this which will increase the recruitment pool might be welcomed. Against that, employers will have additional recruitment costs of processing applications they may later need to turn down. 

This is something that employers who run smaller businesses may particularly need to bear in mind when weighing up the pros and cons of moving away from the current sifting process. 

In addition, in the worst case scenario, there may be the risk of reputational damage from an aggrieved applicant who is turned down late in the recruitment process, when a conditional offer is withdrawn.

Time will tell whether the Campaign gathers momentum, and whether other interesting examples of the positive benefits of hiring ex-cons materialise in the process!

Nikki Duncan is a partner at Michelmores.

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