Having to disclose criminal record to employers could 'legitimise discrimination', says study

Having to disclose criminal record to employers could 'legitimise discrimination', says study

Friday, January 4, 2019

Research has found that when employers ask about a job applicant’s criminal background, it can “legitimise discrimination”.

A paper by the Scottish Centre for Crime and Justice claims that employers could be put off potential applicants if they disclose a criminal conviction.

"Asking people to disclose their convictions at the job application stage legitimises employer discrimination, as most employers don't know how to make sense of the information provided and undermines the purposes of the Rehabilitation of Offenders Act,” Dr Beth Weaver, a criminology expert and lecturer at Strathclyde University, told Sky News.

Reoffending rates decrease by 60% when people secure employment following a conviction, figures from the National Audit Office show.


'Can you lie?'

Employment lawyer Philip Landau joined Mike Graham on the talkRADIO breakfast show, and explained that under current laws, potential employees do not have to disclose ‘spent’ convictions.

This means that certain convictions do not have to be disclosed after a certain amount of time.

“So if you’ve got a criminal record and you don’t have to declare that, you’re not going to, are you?” asked Graham.

“They’re not, and you don’t have to declare,” replied Mr Landau.

“Where the conviction is spent, which generally depends how long your sentence is - if it’s more than four years it’s never spent, so you always have to disclose it - but if it’s less than four years then there’s a sliding scale of three or four years where it becomes spent over that time.

“You do not have to disclose it even if your employer asks you in a check box on an application form or in front of you at an interview stage.”

“So you can lie?” said Graham.

Mr Landau explained it is legal not to disclose spent convictions, but failing to disclose one that’s still on record is not

“The relevant legislation, which is the Rehabilitation of Offenders act, says you do not have to disclose it. It’s not lying.

“What can often happen is an employer finds out somehow, either by word of mouth or by other means, and they might even consider dismissing you for something you failed to disclose four or five years ago.

“But if that did happen, an employee would have the right to bring a claim for unfair dismissal if it was spent.

“If it wasn’t spent, then an employer would be entitled to dismiss you.”


Exemptions for certain crimes

Graham asked whether certain crimes which caused harm to another person would still be ‘spent’ if the offender received the minimum sentence.

“Don’t you have a duty of care to other employees? Sexual assault, minimum two year sentence. Kidnapping first degree, minimum one year sentence. Are you telling me someone who’s done one of those two crimes should be employable?” he asked.

"There are exemptions where this non disclosure rule doesn’t apply, for things like teaching and medical professions. All convictions whether spent or otherwise would come out on a DBS [Disclosure and Barring Service] check. There are all sorts of roles where you would expect all convictions to be disclosed, whether spent or otherwise.”

In a statement, a Ministry of Justice spokesperson said: "Criminal record arrangements need to strike the right balance between rehabilitation and public protection and the current measures do just that.

"All cautions and most convictions become spent over a specified length of time after which offenders are not required to disclose their convictions."