The criminally overlooked potential of ex-offenders in the workplace

Robert Shore: Hello, and welcome to the Brightmine podcast, formerly known as the XpertHR podcast. Brightmine is a leading provider of people data, analytics and insight, offering employment law expertise, comprehensive HR resources and reward data to meet every HR and organisational challenge and opportunity. You can find us any time of the day or night at www.brightmine.com.

Hello everyone. My name is Robert Shore, and today we are going to be talking about employing ex-offenders, why organisations should be thinking positively about this and how to go about it. To do this, I am lucky to be joined today by two guests. The first is Laura Merrylees, senior legal editor at Brightmine, who is going to be covering off the strict legal aspects. Hello, Laura.

Laura Merrylees: Hi, Robert.

Robert Shore: And I’m delighted that we’re also joined by Debbie Sadler of Unlock. Debbie, hello.

Debbie Sadler: Hi, Robert.

Robert Shore: Hi. And I think the place we should begin then Debbie, really is just by asking you to explain what Unlock is and what it does, and what your role is within it.

Debbie Sadler: Yeah, sure. So Unlock is a national independent charity by a group of former prisoners who wanted to use their experiences to enable people with a criminal record to have better opportunities to move on with their lives after their previous offending behaviour. And whilst the charity may look quite different now to how it did in 1999, our aims remain absolutely the same. So we help people with criminal records by providing information, advice and support in overcoming the barriers that they may face as a result of their criminal record, either through our helpline, our website or our online tools. And we also support universities, charities and employers to safely recruit people with a criminal record.

So I’ve been at Unlock for almost 12 years now. And in my role as head of advice, I am responsible for the design and delivery of the core support that Unlock provides to people with convictions, as well as heading our training and consultancy work with employers.

Robert Shore: Brilliant. Thank you. And of course we’ll put details of how to contact you in the show notes. But first, though, we need to explain why people should be doing this.

But Laura, let’s start with some of the sort of legal aspects here. Can you give us an overview of what the law says about recruiting exoffenders from an employer’s perspective? What does an employer need to know?

Laura Merrylees: Yeah, sure. Well, the basic position is that it is unlawful to refuse to employ someone if they have a spent conviction under the Rehabilitation and Offenders Act 1974. There are some exceptions to that basic position for certain roles, and I’ll come onto those. But the basic position is that if somebody has a spent conviction, then it is unlawful to refuse them employment.

So, assuming that there isn’t an exception to that principle, that means it’s therefore unlawful for an employer to ask a job applicant to disclose any spent convictions. And if in fact a job applicant was asked, they would be entitled to refuse to disclose those spent convictions.

Just in terms of spent convictions, just to explain, the majority of convictions become spent after a set period of time. There are exceptions for certain very serious offences which never become spent, but the majority of convictions do become spent after a period of time. And in relation to the length of time that that is, all of the details are set out in our Job applicants with convictions employment guide that Debbie updates for us.

As I was saying, there are certain roles that are known as exempted under the act. So those are instances where it is lawful, and indeed a requirement, for employers to establish whether the applicant has any spent or unspent convictions. And the type of exempted jobs, as you might imagine, where this applies are where in the job the individual will be working with children, vulnerable persons, or the role is one which involves sort of the utmost trust. So it could be police officers, certain professional roles etc. So in those instances, those roles are exempted from the Rehabilitation of Offenders Act.

Robert Shore: So, just quickly, an additional question on spent convictions. But if somebody, for instance, has a prison sentence and they are then released from prison, does that mean that that is then a spent conviction?

Laura Merrylees: No. So the length of the sort of rehabilitation period runs from the end of the sentence. So if somebody was given a prison sentence of x number of years, there would be a rehabilitation period that started at the end of that sentence and then ran for a set period. And at the end of that set period the conviction would be spent.

Robert Shore: And often, how long is that sort of period afterwards?

Laura Merrylees: Debbie, perhaps you can help me out there in terms of sort of the periods?

Debbie Sadler: Yeah, sure. So for instance, somebody that receives a prison sentence of up to 12 months, their rehabilitation period would be a further year. After that, the rehabilitation periods run from sort of four years to seven years for those with prison sentences of over four years.

Robert Shore: So let’s move on then to unspent convictions. Laura, what is the position in relation to those?

Laura Merrylees: Well, it’s different. So in principle it’s not unlawful to ask a job applicant about any unspent convictions. But you still need to make sure as an employer that you’re following the correct processes if you do ask about any unspent convictions. So that’s ensuring that you comply with any specific data protection obligations and conditions that apply. And also if you’re looking to find out about those unspent convictions through a DBS check – that’s the Disclosure and Barring Service – and you’re looking to apply for a basic check, then you have to go through the proper channels and processes in order to conduct that check.

I just want to flag, I mentioned DBS there. There are similar services in Scotland and Northern Ireland but they differ slightly in relation to lengths of service and rehabilitation periods in those jurisdictions. Again, we set those out in the key differences guide, actually, for that section.

Robert Shore: Yeah, so DBS checks – we’ll talk about that a little bit more. Lots of people have DBS checks, don’t they? I used to run my son’s football team and had to have a DBS check to do that. So it’s very common for people to have those. A basic check reveals any unspent convictions?

Laura Merrylees: That’s right, together with any condition or cautions that might apply.

So the next level of check are standard and enhanced checks, and those are checks that employers would need to carry out if they were looking to employ for an exempted role. So as we were talking about before, where people are going to be working with vulnerable persons or children or in other roles. And those would be standard or enhanced checks that an employer would have to apply for. And in those instances the checks will reveal both spent and unspent convictions. There may be some old or minor offences that are filtered out from those checks, but essentially those checks show spent and unspent convictions.

Robert Shore: Yeah. So Laura, somebody presents themselves to an employer for a job. They have an unspent conviction. Can they lawfully be rejected for that reason?

Laura Merrylees: Well, in law they can be rejected for that reason. As we’ve just been discussing, an unspent conviction doesn’t have the same protection as spent convictions under the Rehabilitation of Offenders Act. So it is essentially lawful. But you know, that is the legal position and, you know, I’m very keen to pass over to Debbie here to discuss all the factors and reasons that employers should have in mind when they’re looking at this because the law isn’t the overriding consideration there. And you know, I’m sure Debbie will be discussing, you know, all of the other considerations that apply.

Robert Shore: So Debbie, I mean, I think one interesting sort of fact to put in front of people at the beginning is actually the statistics about how many people have convictions who have been to prison. It is actually quite a significant proportion of the population, isn’t it?

Debbie Sadler: Yeah. I think, Robert, that this is something that really surprises people. The latest figures from the Home Office, which were published at the end of October, reported that there were 12.6 million people in the UK with a criminal record. So that equates to one out of every four people of working age. Which is a significant
number of people.

And I think we’ve all seen in the news recently about overcrowding in prisons and prisons being at breaking point. But it’s probably important to say that actually only 10% of people with a criminal record have ever been to prison. So when we start talking about people with a criminal record, we’re also talking about people that have received community orders, maybe a fine or a driving disqualification, as well as those who have been given a police caution and have never stepped foot inside a court.

Robert Shore: So actually, can you just sort of flesh that out a little bit, just so that, you know, it really allows people to sort of see the full range of things that we’re dealing with here? Say, you don’t necessarily actually even need to have been to court to have a conviction.

Debbie Sadler: Yeah. So it may well be that somebody has been arrested by the police perhaps for shoplifting. And they would be given a caution because it’s a first offence because it’s quite a minor offence. Then the police may decide that they would go down the route of cautioning somebody rather than taking them to court and charging
them that way.

Robert Shore: But actually a caution is a conviction?

Debbie Sadler: It’s still part of somebody’s criminal record, yeah.

Robert Shore: Brilliant. So what we’re really discussing here then is we’re saying that, as you say, one in four in the population have some sort of criminal record. But we certainly have the impression that employers are often reluctant to engage with people with criminal records, and obviously that’s quite a large proportion of the population then that you’re refusing to deal with, or at least knowingly. So why is that? And how is that signalled?

Debbie Sadler: Yeah, so I think that the news, media and TV programmes often inform the way that employers and actually members of the general public view people with criminal records. But what we see on the television or read in the newspapers would generally be the worst cases. And this is a tiny percentage of people that have got a
criminal record.

So with over 12 million people having a criminal record, it’s highly likely that employers will already have employed somebody with a criminal record without even knowing it. You know, as Laura was saying, something that’s spent, that doesn’t need to be disclosed, wouldn’t have been. It wouldn’t have come up on any of those checks.

So employers will often worry about the risk that somebody with a criminal record might pose. Or they may be concerned about the reputational damage if it becomes known that somebody with a criminal record is working for the organisation. But those fears we know are generally quite unfounded.

I think also that some employers very clearly state that they won’t employ somebody that has got unspent convictions or they’ll have blanket bans on certain offence types. For example, they will say that they won’t recruit anybody that has a violent or a sexual offence. But others will have no such policies. But even so, there may be some sort of unconscious bias from hiring managers which might lead to people with unspent convictions being rejected. Or the way that application forms or guidance are set out might lead to somebody actually deselecting themselves because their assumption is that they would be refused a job.

Laura Merrylees: And Debbie, can I just ask, though, it’s really interesting you say there about the sort of way that the application form is set out. What, within your experience, have you seen there that would sort of dis-incentivise somebody from applying even technically if they could? What sort of tends to be sort of operative to make somebody reluctant to apply?

Debbie Sadler: I think that there are lots of people that, actually, the minute they get asked about a criminal record will automatically assume that the fact that an employer’s asking means that they will be rejected, even if that isn’t what happens in practice.

But also, there might be things that…in guidance that says – and we see this often, don’t we? – where an employer says, “The disclosure of a criminal record need not be a barrier to employment.” And the assumption is that, you know, the employer is doing the right thing and they’re saying the right thing and they’re coming across as being very inclusive. But actually, to somebody with a criminal record, the very fact that an employer has written that might mean, “Well actually, you’ve said it, therefore it’s likely that I am going to be refused.”

Laura Merrylees: Yeah, that’s fascinating really, isn’t it? And I suppose if it speaks potentially to a lack of inclusivity in relation to people who are exoffenders, it’s maybe also sending a message about that employer’s approach to inclusivity more generally. I mean, do you think there is something in that?

Debbie Sadler: I think there is. Yeah, absolutely.

Robert Shore: Do you think it’s always intentional? I mean, so there you’re saying the messaging is really important, how you set out policies. You may feel that you’re saying, “Actually we are inclusive”, that is, this doesn’t necessarily exclude you, but actually it reads the other way to the people concerned. Do you think it is always intentionally sort of there to put people off?

Debbie Sadler: No, not at all. I really don’t believe that. I think there are lots of employers out there, Robert, that think that they are doing absolutely the right thing but have got their messaging slightly wrong.

But there are ways that employers can be really, really welcoming. And maybe doing things like highlighting their approach to recruiting people with criminal records in job advertisements or in application packs or on their website, that lets an applicant know that they don’t discriminate and they have very fair and inclusive recruitment
practices.

Robert Shore: How can you do that? What’s a basic good first step towards that?

Debbie Sadler: There are lots of things that employers can do. But I think one of the things that a lot of employers will start to consider is maybe signing up to campaigns like Ban the Box, which removes the box on application forms that asks about criminal records, so therefore giving people the same chances as somebody without a criminal record. And maybe also signing up to things like the Fair Chance Business Alliance Charter, which absolutely demonstrates that they are reaching those sort of bronze and silver and gold standards of really fair and inclusive recruitment.

Laura Merrylees: If the employer does feel that it needs to ask a question about unspent convictions, is there a better stage at which to do that in the recruitment process?

Debbie Sadler: Yeah, absolutely. I think, you know, if an employer is asking everybody about criminal records on an application form, then potentially they are collecting excessive data. And our advice to any employer would be wait until you’ve selected your applicant and then ask at maybe job offer stage.

Laura Merrylees: And in terms of employers that use DBS checks to sort of make the recruitment process “safe”, as it were, does that really actually make the process safe? I mean, it feels like a very blunt tool where, actually, perhaps employers need to be doing other things within the recruitment process to make it safe. What are your thoughts about that?

Debbie Sadler: Yeah, I think you’re right, Laura. I think that there is this thinking that by doing basic criminal record checks on everybody it somehow makes the recruitment safe. But there’s an over-reliance on basic criminal record checks, which means that employers often forget to look elsewhere. They forget that they are part and parcel of a set of recruiting tools. But nevertheless, they should still be thinking about references and any sort of red flag behaviours that might ring alarm bells but might not be captured on a basic criminal record check.

Basic criminal record checks are, you know, a snap in time. So they won’t disclose any current offending behaviour that somebody may not have been arrested or charged for. So I think you’re absolutely right. I think there is this thinking that basic criminal record checks will make for safer recruitment but that is not necessarily the case.

Robert Shore: So we are saying that employers really should be taking a more positive approach in relation to ex-offenders. So why? I mean, there’s an obvious human aspect there, just fairness. Are there business reasons as well?

Debbie Sadler: So yes, there is absolutely a business case. So, recruiting from this pool will definitely help an employer tackle skills and labour shortages. And there is really strong evidence that people with a criminal record will stay in post longer than those without, often because their options are narrowed or reduced.

It definitely improves an organisation’s diversity and inclusion record. And people with criminal records will absolutely bring a different perspective to a business.

But there’s also the social value case. So hiring people with a criminal record means that more people are in employment, less reliant on claiming state benefits. So they start to contribute to the economy rather than rely on it. It reduces that cycle of poverty and crime that can blight families and communities, and that reducing re-offending will inevitably lead to a safe and safer and stronger society.

And for any of those employers that have got corporate social responsibility targets, recruiting somebody with a criminal record will definitely help that.

Robert Shore: So it’s quite a strong series of reasons there, isn’t it really? You talk about the skills gap and helping to fill that, obviously ‘cause you’ve got more people who are potentially available. I think I’ve read of organisations that do actually go into prisons to recruit, and that often, you know, there is quite good training that can be sourced there as well.

Debbie Sadler: Yeah. There are absolutely prisons that offer programmes that lead to direct employment by an organisation. And we know that the likes of Timpson’s do that really, really well, as do Iceland.

But also, you know, there are programmes where people can reskill. They can pick up new skills, learn new trades and then work with the MOJ to get them into work on various programmes in work.

Robert Shore: And if an organisation is interested in sort of looking into that and actually, you know, finding out how skills can be developed before people come to them as well, and how they could possibly engage with that process, what should they do? How can they find out more information?

Debbie Sadler: The New Futures Network is a really great organisation, and that can certainly help and look at the skills that are available and what is within each of the prison settings. But also contact Unlock or organisations like us, and we can certainly put somebody in touch with those organisations that might be able to help them to recruit directly from a prison setting.

Laura Merrylees: In terms of skills gaps and ex-offenders being able to fill skills gaps, have there been any sectors or industries in particular where that has been highly effective in meeting those skills gaps? Have you seen that within your experience?

Debbie Sadler: The retail trade, the construction industry has always sort of done that quite well. Following Brexit, there were some real instances of there being a lack of HGV drivers. And Sainsbury’s have always recruited directly from prisons people with criminal records, and what they did was they started to look at people with criminal records who wanted to retrain as HGV drivers. So they would give them training on the job. And they then asked them that when they had completed their training, that they would then sign up to work for Sainsbury’s for a further two years because of, you know, just to get the money back, if you like, from the cost of the training. And that was hugely effective. Because what they were finding was even with the offer of, you know, a sort of signing-on fee, they still weren’t getting the numbers that they were looking for. So that worked really well.

But interestingly, just this week I’ve had a conversation with an NHS Trust who have said, “We need to look at this pool of talent that we have never looked at before.” Now, that has always been quite scary, hasn’t it? Because NHS, really risk-averse. You know,
generally would not look at people with criminal records. And this one particular NHS Trust has said, “There are real skill gaps in our non-professional roles, just because of where our hospitals are based. And we now really want to do some work in recruiting people into portering roles, into kitchen roles,” where they would probably still require those higher levels of criminal records checks but nevertheless, they are quite happy to maybe look beyond just what something is on paper, and really drill down into what type of risk there might be. And that is so encouraging, I think.

Robert Shore: Is there a sort of way that employers ought to think about that in terms of creating the right environment within the organisation after they’ve employed somebody? So obviously there’s how you approach it at the application stage, but once somebody’s been recruited, are there things that employers ought to do to make sure that, you know, actually it’s the right environment and, you know, there’s enough openness? What is a good approach to this?

Debbie Sadler: It’s great to have at the early stages of a recruitment practice everything that sets out that you are a fully inclusive recruiter. But actually, it’s more than that, isn’t it? It’s having the culture right within the organisation. Because what you don’t want is to encourage people with criminal records to work for you, but actually you’re setting them up to fail because the culture within the organisation is not welcoming. And that can be quite difficult.

So having that culture, engaging existing employees to push that message that you are absolutely a positive recruiter. Maybe providing stories where people can see what an employer has done in the past. And always engage with organisations like Unlock to help you pave the way.

But it might be doing things like having mentors in place that can support somebody through that process, who is new into post, who may have been out of work for a while.

Laura Merrylees: And I think, sort of some of this just reflects a general nervousness, doesn’t it, Debbie, probably on the part of the employer, and maybe employees who are uncertain about past convictions of the colleagues that they work with? But from your experience, what you’re saying is that nervousness isn’t borne out by evidence, that as sort of a group of colleagues that work well together and collaboratively there’s no negative impact, and in terms of damage to an employer’s brand, again, you know, it’s not something that employers should be apprehensive about, from what you’re saying, you know, in terms of the evidence that you’ve seen around that.

Debbie Sadler: Yeah, I think you’re absolutely right. The worry about risk, it’s right to have that. You know, it’s right to be thinking through the impact of somebody’s criminal record. But actually, if an organisation has really good practices and policies in place where they properly risk assess somebody, then actually that’s…you can alleviate any of those concerns. And where there are things that give rise to an employer thinking, “This could be a worry for me,” then they can then put those plans in place to alleviate the risk and concerns.

So I think what we’re saying is that, yeah, there is very little evidence that things go horribly wrong, that actually once you’ve recruited somebody, if you’ve got all of those things in place then somebody with a criminal record is no different to anybody else, and they can bring added value to an organisation.

Laura Merrylees: So just looking at the situation, though, where somebody has an unspent conviction and it is relevant to the role that the employer is looking to recruit for, and potentially prohibitive really in relation to that role, is there a better way to address that with an individual who has applied, in terms of the messaging that…if you have to decline that candidate? Is there any work that you do around that, in terms of guiding employers about unfortunately situations where it is unfortunately a restriction in terms of being able to recruit?

Debbie Sadler: I think that focuses too much on roles that are exempt from the Rehabilitation of Offenders Act, and I think I want to move away from that bit. So I think that if I talk more about maybe not the actual conviction but perhaps somebody that has got conditions on them that will make it difficult to get recruited. So I’m just thinking of, for instance, where somebody has, I don’t know, working in a call centre where they might have access to people’s records but yet they’ve been convicted of an offence whereby they have a condition on their licence which states that they can’t access personal details.

Because that’s…that’s a wide variety of jobs but nevertheless it’s not about their criminal record. It’s a condition that makes it difficult for them to work in certain settings. Not because they’re barred but just because, you know, the practicalities of doing the job would be impossible if they couldn’t access a CRM system, for instance.

Laura Merrylees: Yeah. No, I see what you mean. So it is an unspent conviction but it doesn’t…it’s not exempted under the act, and on paper they can be employed, but they just couldn’t actually do the job because the condition means that there are responsibilities in that role that they wouldn’t be able to undertake. So that would, in essence, rule them out of it, you know, because they would breach a condition of their licence rather than it being anything to do with the fact that they have an unspent conviction, per se.

Debbie Sadler: Yeah. So I think it’s good to say that the employer may have no problem with the actual conviction. More than happy with the conviction. It’s unspent but they’ve got no problem with it. But actually, because of a licence condition, it would be almost impossible for somebody to do a job because of a very specific licence condition. Because I think that then makes people understand that it’s that one thing that would make it difficult for an employer to recruit you, rather than your criminal record or this one conviction as a whole.

Robert Shore: We mentioned a couple of employers that are well-known for taking on ex-offenders, for having a very positive approach to this – Timpson’s, for instance. Can it be damaging to your brand? Or actually, is it the opposite often? And also to be open about your approach towards ex-offenders?

Debbie Sadler: So I think, you know, highlighting the approach to recruiting people with criminal records is absolutely vital. If you’re unemployed and you’re looking for a job, finding a job almost becomes a job in itself, doesn’t it? And if there are reasons that you can’t recruit people with certain types of offences, then say so. Because that will often save somebody applying for a job where clearly they’re not going to be able to get recruited into that role. So be really clear and communicate that wherever you can.

Robert Shore: Can you give me an example of that, just so that we’re sort of clear about a role then where you can’t be recruited into because of something that’s happened in the past?

Debbie Sadler: So for instance, a role where somebody would have maybe access to a vulnerable adult who has had a conviction for fraud against an elderly person, where an individual might have had a conviction against a child who wants to work in a school kitchen. You know, they might not have direct access but nevertheless there may well still be concerns.

Robert Shore: A lot of people think quite positively about, for instance, Timpson’s, because of its policy and its openness about that. Should companies be thinking, “Actually, this can be good for us?” in a wider sense as well, so there’s both the internal business case, there’s a social case, but then there’s also just actually from a marketing aspect, if that doesn’t sound too crass.

Debbie Sadler: Yeah. I think that there are many employers that are really fearful about reputational harm, reputational damage. But actually, recent research has shown that 81% of the public, when questioned, said that they think businesses who recruit people with a criminal record make a very positive contribution to society. 50% of people say that businesses that don’t recruit people with a criminal record are less socially responsible. And one of the biggest things for me was that, when asked, 75% of customers said, “Yeah, I’d be more than happy to buy from a business or trade with a business that recruits people with a criminal record.”

And those surveys were just done amongst the wider general public. They were not done specifically with criminal justice charities or employers that recruit specifically for…recruit people with a criminal record. They were just the wider general public. So I think those figures are quite astounding. But maybe they will put the mind at rest of some of those employers that are sceptical.

Robert Shore: Debbie, I think that’s a great point on which to leave it, the possibility of reputational not damage but enhancement even for employers. So Debbie, again thank you very much for your time today. It’s been great to hear from you.

Debbie Sadler: Thanks, Robert. Thanks, Laura. It’s been lovely to chat with you today.

Robert Shore: And obviously thanks to Laura as well. And we will put all the various links to organisations that were mentioned in the programme in the show notes, and there are some supporting materials on our website as well. And so without further ado I will say – until next time.