to think this person is being completely UR in these interviews

[mileend2bermondsey]

I know a person who owns their own carpentry business and has been interviewing apprentices. I found out one of the questions she has been asking in the interviews is 'do you have a criminal record and have you ever been in trouble with the police'. I said its totally UR to ask and that the interviewees are under no obligation to disclose this information.

Am I alone thinking this is out of order and actually illegal?

You can ask it, it's standard on a job application form. If you dont have an actual conviction you can just say no, if you have a 'spent' conviction you can say no. My DH has a spent conviction so can now answer no to the question, but it caused awful problems when it wasnt spent. You can lie but if they do a DBS they'll find out, or if they find out another way it would be gross misconduct I imgine.

I think they are entitled to know if the applicant has a criminal record, but only if it's relevant to the job iyswim. Don't quote me though!

The criminal record question is generally found on an application anyway (as in, to declare any unspent convictions) so I think that's ok (but I'm not HR). I don't think the "have you been in trouble with the police" question is in any way professional but I'm not sure if it's "illegal" either.

It's pretty standard to have to declare criminal convictions on job applications.

She is expecting the interviewees to declare spent convictions, this is surely illegal?

Why do you think it's so out of order? It seems like a reasonable question to me and one which is asked as standard on a range of application forms, including for jobs where the question has to be asked as part of the recruitment process (although I assume that this is not one of those).

Is she though? Does she specify that?

It's a question I have been asked on every interview. Dbro had to declare his conviction (which is now overturned) on his applications for (I think) 5 years.

Pretty standard. Dh used to speak to applicants about it as they did the crb check on staff (several years ago).

What part of this do you think is illegal?

Yes any spent convictions spent or otherwise and any 'trouble with the police' in general.

Yes, I see what you mean, as in she'll get the "spent" answer by asking the "have you ever.." question. Not sure of the legality but it would be awkward for anyone who has got a spent conviction, yes.

Why has this been asked?

Will the applicants be working in a school or with vulnerable adults for example? If so, they'll need enhanced disclosure in terms of vetting and barring checks. In that instance, essentially no convictions are "spent" and they will all show up.

However, normally an employer would apply for these types of checks post provisionally offering a job.

Tbh I think she is skirting the law.

She isn't saying 'do you have any spent convictions', her question could be viewed either way. But she could argue that she hasn't actually asked for spent convictions

She doesnt want to hire anyone with a conviction.
She is getting the applicants via a recruitment agency and she told the agency she dind't want any one with a criminal record and apparantly they told her 'thats fine, just ask them [the interviewees] if they do.'

Job is not the sort where he/she will be working with any vulnerable people or need a CRB check or anything.

Sorry - just to be clear, I should have said in my earlier post that some more minor convictions will be filtered out of enhanced disclosure checks

However, if the interviewees are covered by the Rehsbilitation of Offenders Act then they can just answer "no" (unless it's for role that requires enhanced disclosure and the conviction is for an offence that is not filtered)

If your friend discriminates against any applicant and they can prove it was in relation to a spent conviction or a conviction that would be filtered in terms of enhanced disclosure then they have the basis of a claim against her/the company so she's actually being quite foolish asking unless there is a specific reason but, in any event, the correct way to go about this is to apply for disclosure after making a provisional offer

Interesting that the agency aren't filtering them....because they know it's possibly unlawful

I should imagine the applicant could be working in peoples homes so yes if I was in their position I understand how it could be seen as a valid question

It may not require a check but it could be relevant. They may get access to customer details, use Dpa etc.

It's not really clear cut. Because of her wording and what they will have access to.

She can't actually say 'no one with no convictions or arrests ever in their past' though. But sounds like the agency shouldn't have told her to ask

Thanks for your posts Gobbo

Found this website which tries to explain it all www.nacro.org.uk/resettlement-advice-service/support-for-individuals/jobs-and-volunteering/disclosing-criminal-records-to-employers/#lawdisclosingjobs

I cant link to it but there is a little downloadable flowchart which shows under which circumstances an employee has to declare spent convictions.

I cant work out if she is doing anything legally wrong by asking, but its clear the interviewees are under no obligation to tell her of any spent convictions.

Just to note that if the role does not involve working with vunerable people it is not permitted to get a DBS check now. Such a problem with roles which are on the (ill defined) borderline.

Why are you concerned? For her or for someone you know who is applying or just out of interest that things should be legal?

I think if I were running my own business and interviewing apprentices I think I might be extra careful too. It is not like a big company who can take a risk, have procedures, have cash available to deal with any difficult situations. It is her business, her life. ( Not excusing anything illegal but thinking about why)

I am concerned because its encouraging discrimination, something which I dont think should be happening.

If these people are going to be working in customers homes then she has every right to ask in my opinion.

She can ask (though I don't think she should) but they're under no obligation to tell her and she would have no way of finding out if they're telling the truth.

DBS checks are for specific roles and are a specific process. You quite rightly can't just ring up the Police and ask if someone has a criminal record.

I agree Crispbutty. I would want to know, I wouldn't discriminate on the basis of a conviction- it depends what it's for. If they are going to be driving a company van and have convictions for dangerous driving I don't want to give them tools for it even if they've gone passed a ban. If they've raped or assaulted then I have to bear in mind the duty of care I have to other employees and people who will be customers.

If the agency have told her she can then that's what she's going on. She won't necessarily know for sure if they say no unless she pays for checks.

If she is that bothered, she should pay for checks.

Like laughing said, you can't just get DBS/CRB check on someone else because you fancy one.

You can ask if they having any driving convictions if they will be using company vehicles and they are legally obliged to disclose any. Already said before they will not be working with vulnerable people or children (its a carpentary business). Everything else is irrelevant, thats why we have The Rehabilitation of Offenders Act. So people arent judged for ever on their past.