Someone with a criminal record has applied for a job with your company. Are you confident you can handle them fairly? How can you be sure your recruitment procedures are legal?

Many might have reservations about employing someone with a criminal record, but there are legal considerations you must be aware of, while it might well be in your interests not to judge too hastily.

The key rule is this: don’t discount otherwise suitable applicants on the basis of past offences which are irrelevant to the post applied for.

Your recruitment policy

You must have an existing policy in order to ask candidates about relevant prior convictions during your recruitment process. Candidates must know about this in advance, so mention it in the job advertisement (or make it clear to your recruitment agency). It's best practice to include in your job pack a statement that an irrelevant conviction will not be a bar to employment.

You must always ask for information regarding prior offences if the job involves working with children or vulnerable people. It’s important to have a policy in place so that you can apply to the Criminal Records Bureau for “Disclosure” (information about the applicant’s previous offences) when you reach the point of wanting to offer someone a job. This will confirm (or contradict) details the candidate has disclosed. If you request fewer than 100 checks a year, you will have to go through an umbrella body, which will forward your application on your behalf.

For other positions that are not exempt under the Rehabilitation of Offenders (Exceptions) Orders, you may only ask about convictions not “spent” (where the rehabilitation period is not complete or which carry a custodial sentence exceeding two and a half years). An applicant has the right to refuse to volunteer information about spent convictions unless you have a bona fide legal reason for asking (ie it’s relevant to the position).

Relevance of the conviction

If a job applicant mentions a prior conviction without being asked to do so, it might be harsh to write them off for displaying such honesty. Try to remain focused on the relevance of the offence to the post for which they are applying, and consider their skills and suitability.

A candidate’s prior conviction might be related to the job for which they have applied (they might have been convicted of fraud and are applying for a position doing your accounts). You must consider individual circumstances. They may not meet your person specification because of the offence (eg “has demonstrated trustworthiness in a similar position”). But if they are otherwise suitable and your only concern is the “at risk” nature of the role, you could consider a fidelity-bonding arrangement (a form of insurance protecting you against loss of money or property through the dishonest acts of employees).

If you don’t have a policy regarding prior convictions and an existing employee is found to have a criminal record, you should again weigh up its relevance to the role. Only if it is directly relevant and constitutes a breach of trust should you consider taking further action (dismissal in extreme cases or moving the employee to a different role). In these circumstances, it’s advisable to take legal advice first.

• For further information, download the CIPD publication Employing ex-offenders: A practical guide

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