Criminal records policy
Introduction
This document sets out the Commission’s policy towards the recruitment and retention of people with a criminal record.
The Commission is fully committed to recruitment on the basis of an objective assessment of candidates against job related factors. Having a criminal record will not necessarily prevent an individual from working at the Commission. This will depend on the nature of the position and the circumstances and background of the offence(s).
Certain positions require applicants to have been screened by means of a “disclosure” obtained from the Criminal Records Bureau (CRB). A disclosure is an impartial and confidential document that details an individual’s criminal record and, where appropriate, details of those who are banned from working with young people under 18 and vulnerable adults. A disclosure is only requested after a thorough risk assessment has indicated that one is both proportionate and relevant to the position concerned.
Details of the practices, standards and safeguards that the Commission will apply in dealing with the sensitive information relating to criminal records are set out below.
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Scope of policy
The policy will apply to those seeking paid or unpaid work with the Commission that involves work with young people under the age of 18, children or vulnerable adults. It will apply to Commissioners.
For staff moving within the Commission to a post with an increased level and nature of access to children or vulnerable adults, a higher level of disclosure will be required. When someone is moving within the Commission and has already been checked at the enhanced level, there is discretion as to whether or not to perform a further CRB check. However, where there might be reasonable grounds for concern, an up to date criminal record disclosure must be obtained.
The relevance of criminal records to the workplace is a developing area of employment and the Commission will need to review and amend its policies in the light of experience or new legislation. Where, due to changes in legislation, some staff groups become subject to regulation for the first time, the Commission will require existing employees in those groups to obtain a criminal records disclosure under the terms of this policy.
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What is a criminal record?
A criminal record arises from a conviction in a court of law. There are also police records. Cautions, reprimands, warnings and final warnings are issued by the police as an alternative to prosecution, usually for less serious offences and only after an offence is admitted.
Disclosures do not normally include speeding and minor driving or traffic offences.
Legislative background
Under the Rehabilitation of Offenders Act 1974 (ROA) any conviction will become spent after a specified period of time provided that the conviction did not involve a custodial sentence of more than two and a half years and provided there are no further convictions within the rehabilitation period. Once spent, the individual does not have to declare a conviction to a prospective employer, unless the vacancy is in one of the types of employment listed in the ROA, the ROA (Exceptions) Order 1975 and the ROA (Exceptions) (Amendment) Order 2001. These occupations include solicitors, those administering the law, chartered accountants, registered teachers, jobs involving contact with children and jobs involving access to other vulnerable groups and those with a serious illness, disability or addiction. Organisations that employ people in these categories are legally entitled to ask exempted questions about criminal records and require candidates to disclose spent convictions.
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Criminal Records Bureau
The Police Act 1997 established the Criminal Records Bureau (CRB) to give employers and organisations access to criminal record information from a centralised source. Part V refers specifically to the disclosure process. There are two types of disclosure:
Standard disclosure: Standard CRB checks are for people with jobs in involving contact with children and vulnerable adults or access to information about either. Standard CRB checks show current and spent convictions, cautions, reprimands and warnings held on the Police National Computer.
Enhanced disclosure: These disclosures will apply to posts with greater contact with children or vulnerable adults. They contain the same information as the standard disclosure but with the addition of:
- any relevant and proportionate information held by the local police forces. This level of disclosure involves an additional level of check to those carried out for the standard CRB check - a check on local police records. Where local police records contain additional information that may be relevant to the post the applicant is being considered for, the chief officer of police may release information for inclusion in an enhanced check.
- a check of the new Children and or Vulnerable Adults barred lists where requested.
Exceptionally, and in a very small number of circumstances (typically to protect the integrity of current police investigations), additional information may be sent under separate cover to the organisation and this should not be revealed to the applicant.
The Commission is not a Registered Body with the CRB. It uses an umbrella organisation, Capita Vetting Services, to process applications for criminal records disclosure on its behalf.
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Recruitment offers of employment
Every post is referred to by a Post Number to simplify monitoring procedures. Where the Post Number is suffixed by the letter “X” the post is exempt from the provisions of the ROA and the appointment of the successful candidate will be subject to the receipt of a satisfactory enhanced CRB disclosure before an offer of employment is confirmed. The applicant will be told that an enhanced level of disclosure is required in the job pack.
Upon making the conditional offer of employment the HR Manager will ask the successful candidate to complete a CRB form. The successful candidate must fully complete the CRB form and return it to the responsible HR Manager who will arrange to have it sent Capita Vetting Services for processing.
As part of the disclosure procedure the successful candidate will have to produce documentary proof of identity. Documents containing a photograph, such as a passport or photo-style driving licence combined with evidence of address are preferred. Only original documents or official duplicates are acceptable for this purpose. Photocopies are not acceptable.
To minimise delays in the appointment process candidates invited to interview will be asked to bring with them the necessary documents to prove their identity.
The CRB charge a fee for the disclosure service, which will be paid by the Commission.
Staff transferring into a post which is exempt from the provisions of the ROA will require an enhanced CRB disclosure before the transfer is confirmed.
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Disclosure information
A standard or enhanced criminal record disclosure, giving details of any convictions or police records, is sent to the candidate and the Human Resources Department.
The information contained in criminal record disclosures is considered highly confidential and the Commission will restrict access to those who are entitled to see it as part of their duties for example, HR Managers and the Deputy actively responsible for the vacancy in question. The Commission also undertake to ensure that disclosure information is:
- treated fairly
- used solely for the purposes for which it was collected
- handled and stored securely, and
- kept for no longer than necessary – once a recruitment (or other relevant) decision has been made disclosure information will be destroyed. This will generally be after a period of up to six months, to allow for the consideration and resolution of any disputes or complaints.
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Assessment of the relevance of criminal records
The successful candidate will be given the opportunity to discuss any convictions, cautions, reprimands, warnings and final warnings they have, spent or unspent, with the Deputy and Head of HR and will be asked to make a written declaration about their record before a CRB Disclosure Application form is submitted to the CRB.
Having a conviction, caution, reprimand, warning or final warning will not necessarily bar someone from employment with the Commission. This will depend upon the circumstances and background to the offence(s) and the nature of the work or position being sought. The Commission will only take a criminal record into account when the conviction is relevant. Since questions about criminal records are only asked of the successful candidate, job applicants can feel assured that having a criminal record will play no part in the initial selection process.
Where the CRB discloses a criminal record, an assessment to decide the relevance of the criminal record and the suitability of the individual to carry out the duties of the post will be made. To reach a fair and balanced decision this assessment will involve an evaluation of the associated risks. Protection of the applicant’s rights and interests must be weighed against the rights and interests of the Commission, its employees and those bodies or members of the public with whom an employee may come into contact. The Deputy, in discussion with the Head of Human Resources, will consider each case on its individual merits but will take into account the following factors as a minimum:
- the relevance of the offence to the duties and responsibilities of the post
- the nature and level of contact with children and other vulnerable groups
- what responsibility the post has for finance and other resources
- the freedom of action in the post and the level and nature of available supervision
- what level of contact the post has with the public
- the seriousness of the offence and its relevance to the safety of other people and resources
- the length of time since the offence was committed
- details of the circumstances that led to the offence (eg domestic or financial problems)
- changes to the individual’s circumstances that make re-offending less likely
- whether the individual has a history of re-offending
- the country in which the offence was committed, for example some offences in Scotland are not necessarily offences in England and Wales.
Before a final decision is made the applicant will have the opportunity to discuss the disclosure information with the Deputy and Head of Human Resources. This will provide the applicant with the opportunity to explain, question and promote her or his own views. Applicants also have the right to appeal to the CRB if they think a mistake has been made about their identity or if they feel the information disclosed is incorrect. The Commission will normally allow a reasonable amount of time for the applicant to exhaust this right of appeal before finalising a decision.
Once a decision has been made, the Deputy will contact the employee/applicant to explain the decision reached and will confirm the decision in writing.
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Starting work pending a CRB disclosure
It is Commission policy that no one should be allowed to start work before the CRB disclosure is received. However, in some cases, waiting for CRB clearance may not practicable eg to ensure minimum staffing levels; therefore, the Deputy Ombudsman may allow someone to start work before receiving a disclosure from the CRB.
In these circumstances the Deputy will undertake a formal, written risk assessment. Arrangements should be reviewed on a regular basis, at least every two weeks, until the CRB disclosure is received. All other pre-employment checks must also have been completed including identity check, two satisfactory references including the previous employer, health clearance and qualification requirements.
Portability
In some circumstances the Commission may re-use a CRB check the applicant obtained in another organisation. This is called portability.
If the applicant requiring a CRB check advises the Commission that they already hold a CRB check and the Commission wish to use that CRB check the HR Department will:
- Ask the individual to show their copy of the CRB check.
- Contact the countersignatory named on the front of the CRB check and confirm that the reference number and identity details match.
- Ask if the countersignatory received any additional information (the countersignatory will only confirm or otherwise the existence of such information).
- If there is additional information, ask the individual to apply for a fresh check.
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Staff holding standard and enhanced CRB checks
Staff in a post requiring a standard of enhanced disclosure must;
- Notify their Deputy if they are arrested at any time.
- Submit an application for a revised criminal records disclosure every three years or at any other time where the Commission has reasonable grounds to request a disclosure.
- Co-operate with the Commission in the above procedures.
Occasionally the Commission may have reasonable grounds to ask an existing employee to re-apply for a criminal record disclosure to disclose the most recent information available. Refusal to co-operate with the Commission in this respect may result in disciplinary action.
Convictions acquired during employment
Should an existing member of staff acquire a criminal conviction and/or caution during the course of their employment, they must disclose that fact and details of the conviction and/or caution in writing to the Deputy as soon as possible Their line manager, the Deputy, the Head of HR and a relevant independent individual will carry out an assessment in accordance with the procedure set out above and recommend to the Deputy what action, if any, should be taken in the light of the changed circumstances.
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Complaints
Applicants or staff who are unhappy with any aspect of the application of this policy should initially raise their concerns with the Head of Human Resources. Where this fails to produce a satisfactory resolution, applicants have the right to complain to the Deputy Chief Executive and Secretary.
The above complaints procedure is intended to deal with the Commission’s own internal processes. Complaints relating to mistaken identity or the nature of the information given in a criminal record disclosure can only be dealt with by the CRB.
Contractors and agency staff
The principles of this policy will also apply to contractors and agency staff whose contract involves work with young people under the age of 18, children or vulnerable adults.
Human Resources
27 September 2010
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Date Updated: 22/11/10