IT HAS long been recognised that employment is an important factor in reducing reoffending. So, it is strange that one section of the labour market that is overlooked is ex-offenders.
Historically, they have had disproportionately low skill-levels, few qualifications and poor employment histories, and this has contributed to a reluctance to employ them.
However, if Home Office predictions of a rise in crime caused by an econo
mic slowdown are correct, the number of ex-offenders within the working population is set to soar in the long term. Many people already will challenge the stereotype of an ex-offender but, if employers' attitudes do not change, this demographic could remain an untapped resource, despite potentially possessing skills crucial to UK business.
Rejection is often based on prejudice rather than real risk and is exacerbated by lack of knowledge of the legislation. Any sense of corporate responsibility a company may adopt could see ex-offenders losing out because of misconceptions about the effect of legislation, such as that concerning children and vulnerable adults.
Applicants are under no obligation to disclose their criminal record voluntarily but, as a general rule, they must do if asked. Unless the post is "exempted" – such as those working with children – there is no legal requirement to disclose spent convictions, and it is illegal to discriminate against ex-offenders on the grounds of spent convictions.
A lack of awareness of the law among ex-offenders and employers alike has meant that, for example, posts are believed to be exempted when in fact they are not. This leaves organisations open to costly legal challenges and encourages efforts to hide criminal convictions.
In most cases, applicants are asked to provide details of their criminal record on a job application form. This is more likely to lead to rejection than if the information is sought at interview because, in theory, matters can be discussed more fully at an interview.
In reality, both parties are often ill-equipped to do this. The ex-offender's confidence might be affected by the recruiter's reaction, and the recruiter is concerned they might be held responsible for recruiting an ex-offender who then offends at work.
The result is that little realistic assessment of the implications of a criminal record on the ability to do the job is conducted. Certainly for driving or theft offences, job-related criteria are commonly used, but even then there can be a tendency to discriminate that undermines the point of objective criteria.
For those posts that are exempted, the scheme, operated by Disclosure Scotland, offers two levels of disclosure certificates, standard or enhanced.
Organisations using the service must comply with a code of practice and, under its provisions, must have a written policy on handling, holding and destroying disclosure information. In short, it must only be used for the purposes for which it was provided and must not be used to discriminate.
The recent case of R vs the Chief Constable of Thames Valley Police highlights the difficulty organisations have in understanding their responsibilities under disclosure certificates, which only have to meet a low threshold for inclusion of information that "might be true". An informed decision as to whether recruitment of the individual is an unacceptable risk requires consideration of the information provided and any additional explanation the individual may provide.
Organisations need to ask whether it is appropriate to obtain criminal record information and a disclosure certificate. All too often the certificate can be used as a substitute for good checks, such as taking up references.
Employers must therefore check whether their recruitment process provides opportunities to take what applicants have to say into account. The fact someone has served a jail sentence is no excuse for a lazy approach and organisations need to recognise it is an economic necessity to know the law and consider all applicants with the skills to do the job.
• Donna Reynolds is a solicitor with CCW Business Lawyers.
The full article contains 668 words and appears in The Scotsman newspaper.
