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Can I Ask a Job Candidate About Their Criminal History?

Interviewing can be a tricky process to ensure that you get the right person for the job and your organisation, but there are certain areas you must not ask about no matter what. In a series of blogs we look at what you should and should not ask a candidate during the interview process.

Criminal History

Under the Rehabilitation of Offenders Act 1972, candidates generally don’t have to disclose “spent” convictions; most convictions are spent after five years. It is unlawful to discriminate against any candidate who has a spent conviction other than in relation to specifically exempted job roles. There are some job roles that are exempt from this and a candidate would have to disclose all convictions – including those that are spent.

Roles that are exempt from the Rehabilitation of Offenders Act include:

  • working with children and vulnerable adults, such as elderly and disabled people,
  • senior roles in banking and the financial services industry,
  • certain posts connected to law enforcement, including the judiciary and the police,
  • work involving national security,
  • certain posts in the prison service,
  • certain professions in areas such as health, pharmacy and the law,
  • private security work.

You should not ask a candidate at any point if they have been arrested or ever been in jail. Some roles may require a Disclosure and Barring check (DBS check) which were formally known as CRB checks. If you ask for this to be done before an interview you should not discuss the findings. Likewise if you ask about criminal history on an application form.

Alternative Questions

There aren’t really any questions you can ask about criminal history that can be asked in any other way. If you need to check someone’s criminal history for the job role then you can ask for a DBS check.

If after you’ve hired someone you discover they have lied about their criminal history you may have grounds to dismiss them.

But if you fire them after finding out that they haven’t disclosed a spent conviction and they have more than two years of service, this is unfair and would likely give grounds for a case for unfair dismissal. However, in the great majority of cases, employers will find out either at the interview stage or early on, and under those circumstances, although it is technically unlawful to dismiss someone because of a spent conviction, the individual concerned cannot bring a claim for unfair dismissal, because they do not have sufficient service.

For other questions that can’t be asked please see our blog What Can I and Can’t I Ask During an Interview?

If you are facing a potential legal situation with a job applicant and you need expert legal advice, please contact our team of employment lawyers at Slater and Gordon. Call us on freephone 0800 916 9060 or contact us online and we will call you.

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