Clean break: employing ex-offenders
Many employers discriminate against people who have a criminal record, irrespective of its relevance to work or the risk of re-offending. Yet given the high proportion of employees with a criminal record, it is not tenable to marginalise these people. Kate Godwin examines the issues involved in recruiting ex-offenders and the experience of some employers who have been happy to do so.
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Key points
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Crime and the criminal justice system have become political issues in recent years and leniency is unlikely to be a vote winner. The widespread mistrust of people who have a criminal record means that it is the most cited factor when employers are asked what would put them off employing someone.
People with a criminal record, particularly those who have received custodial sentences, are usually examples of multiple exclusion. Research shows that many have low levels of educational attainment; come from unstable family backgrounds; are of ethnic minority origin; and have a history of drug or alcohol abuse.
Yet few people see them as meriting attention like other disadvantaged groups, such as people with disabilities, for example. The feeling usually is that their situation is their own fault and that resources should be devoted to more deserving disadvantaged groups. Some employers have had to grapple with employing women, gays, ethnic minorities and disabled people - ex-offenders are not even on their radar.
In 2001, the Department for Work and Pensions report Barriers to Employment for Offenders and Ex-offenders1 found 14% of prospective employers rejected an applicant with a criminal record, regardless of why or when they got it.
Why should we care?
Yet when we learn that some 34% of men and 8% of women will have a standard conviction by the age of 40, it seems unreasonable to see offenders as a minority group that can be ignored (see box 1). And, given that research2 shows employment can reduce re-offending by up to 50%, it seems short-sighted not to offer employment to those who want it (see box 2).
Yet employers continue to discriminate against those with any previous conviction, regardless of the risk of re-offending. Many believe that while there is a need to protect the public, the balance between public protection and the risk posed by ex-offenders is currently tipped too far against ex-offenders3.
On a practical level, all but 30 or so of the 75,000 people currently in our prisons will be released back into the community at some stage. As a Chartered Institute of Personnel and Development (CIPD) report points out4, an offender who completes a custodial sentence really has only three options:
find employment and become a useful contributor to society;
rely on the state to provide benefits, possibly for a long time; or
return to crime in order to live.
Marginalising people who have a criminal record is no longer tenable and may even compromise the rights of ex-offenders under the Rehabilitation of Offenders Act 1974. Offenders need to be given the opportunity to change their behaviour and re-engage with their community as productive members. Victims of crime and the wider community are best served if people do not re-offend. As the CIPD observes, it is in the self-interest of business to contribute to the creation of safe, inclusive and economically healthy communities in which businesses can gain greater prosperity. This is a key driver for corporate social responsibility initiatives and current signs are that more organisations are realising that reputation and image are enhanced by involvement in community issues that are of concern to the public.
Employer concerns
Understandably, employers have worries about employing ex-offenders. The most commonly cited are regarding:
trust/honesty/integrity;
social skills/interaction;
security;
reaction from co-workers;
stigma;
reliability - attendance/punctuality;
support after release;
quality of work;
commitment to a new start;
drugs;
changing management attitudes;
lack of "get up and go"; and
re-offending - particularly while at work.
Employers who have experience of recruiting ex-offenders dismiss these concerns, specifically pointing out that they are more likely to get a dedicated worker because they have been prepared to give them a second chance where others would not (see box 3).
Liz Boddy, director of John Boddy Timber in Boroughbridge, Yorkshire, had experienced difficulty in finding people to fill her vacancies before liaising with her local prison. She says: "Employing ex-offenders has certainly solved my problems with recruitment. These people are highly committed and they really want the job. There was some reticence in the workforce before the first ex-offender arrived, but as soon as they met him they completely accepted him."
Julia Rogers of the Co-operative Group does stress that an ex-offender has to be committed to change.
"I've learnt that a willingness to make a new start is absolutely crucial. Having a partner, such as the probation service, who can screen potential candidates is absolutely invaluable and the new National Offending Management Service (see contacts box) might be very useful to employers." (See box 4) Rogers thinks the screening offered by the probation service helps to allay concerns about a particular individual's reliability.
Breaking down prejudice
It seems that the fears people may have about employing ex-offenders are dispelled when they meet them. In a CIPD survey, of the 144 HR professionals who have knowingly employed ex-offenders, only eight reported cases of re-offending. In addition, two-thirds of HR managers state that employing ex-offenders has been a "positive" experience. Only 6% had a negative experience, and more than half of those were due to the poor attitudes of colleagues.
In a bid to break down employer prejudice, several criminal justice organisations put on events where employers can meet ex-offenders. Employment Inside and Out was a series of seven events organised by the Inside Out Trust, held in six English and one Welsh prison between March 2003 and June 2004.
Employment Inside and Out engaged people not usually associated with prisons. In addition they sought to dispel myths and change attitudes by inviting employers and other key members of the community into prisons to meet offenders and see the work they do and the skills they can develop during their sentences.
The vast majority of delegates reported themselves reassured and more open-minded after their visit, with their concerns significantly reduced. As one delegate said: "My concerns about trust, etc were endless. I am now very interested."
A former prisoner who spoke at one of the events was immediately offered an interview by a representative from Safeway and now has a permanent job with the company, following a successful probationary period.
Prison service area manager John May says: "We are not asking for special treatment for ex-prisoners. We can offer people who are very motivated to work; people who have tried crime and failed." He comments that prisons now have first-class education and training facilities which can be adapted, with advice, to meet employers needs. Rehabilitation and employment programmes for offenders are progressing all the time and as the government implements programmes designed to address skill deficits, combat social exclusion and reduce crime, programmes of support will be developed that will be even more beneficial to employers (see box 5).
The legal framework
Employing people with a criminal record is a real issue for employers now that criminal records can be accessed through the Criminal Records Bureau (CRB) or Disclosure Scotland. Previously, only employers who recruited people to work with children and vulnerable people could check if an individual had a criminal record. The introduction of the basic disclosure will mean any organisation could have access to a job applicant's criminal record if they so choose.
Under the Rehabilitation of Offenders Act 1974 (ROA) a conviction for a criminal offence can be regarded as "spent" provided:
the conviction did not carry a sentence excluded from the Act, such as a custodial sentence of over two and a half years; and
no further convictions occurred within the rehabilitation period.
A conviction is not spent until the rehabilitation period is complete. Once it is spent, the rehabilitated person does not have to reveal its existence in most circumstances and can answer "no" to the question "Do you have a criminal record?" - although certain occupations are excepted. Custodial sentences of over two and a half years are never considered spent (see table 1).
Cautions, reprimands and final warnings do not come under the ROA so can never be spent or unspent. In 2002 the Home Office proposed that they should be given a rehabilitation period of nil, which means they would be spent immediately. This legislation has yet to be implemented and criminal justice agencies are hoping that a reform of the ROA will be included in the next Queen's speech.
The ROA review was prompted by a recognition that rehabilitation periods are too long and limit the ability of ex-offenders to gain employment. The Home Office review aimed to strike a balance between minimising the requirement to disclose for "the very many offenders who simply want the chance of lawful employment, while maintaining a requirement to disclose where there may be a particular risk of harm".
Disclosure
The CRB was established in 2002 to enable organisations "to make safer and more informed recruitment decisions".
A duty and concern to protect young people and vulnerable adults means that jobs where someone will have contact with these groups are exempt from the Act that allows criminal convictions to become spent or ignored after a specified rehabilitation period. Two types of criminal record checks are available in these circumstances:
standard disclosure: This contains details of all convictions, including spent convictions, and nationally held cautions; and
enhanced disclosure: This will contain similar information to the standard disclosure, but also include relevant non-conviction information, such as local police records.
Basic disclosure
Towards the end of this year, "basic disclosure" is expected to become available for all other types of occupation, although its introduction has been repeatedly delayed and may be so again. The basic disclosure will show all convictions held at national level that are not spent under the ROA. While there is little argument over the role of standard and enhanced disclosures where the checks are on people in sensitive roles, the basic disclosure is potentially controversial. The Home Office review of the ROA made clear that any new disclosure system should be "devised specifically to assist the employment process".
Mervyn Barrett, communications manager of the community and criminal justice directorate at Nacro, says that, unlike the standard and enhanced disclosures, there is less clarity about the purpose of the basic disclosure. "There's no coherent ideology behind it," he says.
Barret does, however, point out that the CRB is required to be self-financing and basic disclosures that can be requested by all employers can potentially provide a lot of business.
Criminal justice organisations are concerned that employers may now seek a basic disclosure from prospective job applicants just because they are able to do so, and that they will automatically exclude candidates with a conviction, irrespective of the type of offence and its relevance to the job.
Indeed, some employers may not just seek information on convictions, but cast the net wider and ask about a criminal record, which could include cautions, reprimands and final warnings. In such cases, the person has not been convicted of an offence, but has admitted an offence and has been given a warning by a senior police officer about their future conduct. Cautions, reprimands and final warnings do not generally relate to serious offences or to an offence where a finding of guilt has been made. As already mentioned, the Home Office has proposed that they should be spent immediately.
The worry is that if employers operate a blanket exclusion policy towards anyone with a criminal record, crime would actually increase, given that employment cuts re-offending. If employers start requesting basic disclosures as an automatic part of the recruitment process, it may act as a real disincentive for ex-offenders to find work. Research shows that, already, ex-offenders find it "eight times harder" to get a job than someone without a criminal record.
Nacro runs a helpline that takes around 20,000 calls a year and Barrett reports that two-thirds of those are concerned with disclosures. "A considerable proportion of people have lost their jobs or have been refused employment because an employer has requested a standard or enhanced disclosure," he says.
Barret points out, however, that standard and enhanced disclosures are mainly requested by voluntary agencies or the statutory sector, both of which he claims are extremely averse to taking risks.
"There's evidence to show that the private sector is much more concerned with performance and that they would be much less inclined to dismiss someone for an offence that has no bearing on their ability to do the job," he says.
Striking a balance
The introduction of new procedures for providing criminal record information to employers may increase the difficulties that offenders face in finding work. The CIPD hopes that employers will not discriminate against those with a criminal record, but recognises that it is a challenge for employers to act fairly when public opinion is hostile to offenders.
The change in the law that will enable employers to ask for a basic disclosure could be extremely damaging for the job prospects of ex-offenders - particularly where employers do not have a policy in place on their recruitment.
All discrimination does is undermine effective personnel management. Many job applicants have committed crimes but do not have a criminal record, or have spent convictions. Because one-third of men under 30 have a criminal record, many employers will probably have ex-offenders in their workforce. Many employers are very quick to take the moral high ground, while in fact they are unknowingly employing people with criminal records.
The CIPD believes that to reduce unfair discrimination towards offenders, it is essential to raise the awareness and understanding of employers about the ways to access the skills and talents of offenders and manage the risks successfully.
In the CIPD's view, there are important social and business arguments for employers facing up to the challenge of employing people with criminal records, and that this should be done in responsible, balanced ways that maintain a duty of care to employees and customers, protect business interests and give access to the widest pool of talent.
Further, the CIPD points out that not every ex-offender has been in prison for a major crime. Of those who go to prison, most serve less than 12 months. On average, released prisoners comprise between 2% and 3% of the average monthly in-flow to the unemployment pool.
At a time of nearly full employment, it is difficult for employers to attract and retain employees. Marginalised groups within the workforce are becoming an increasingly important source of skills and employers that automatically disregard people with previous convictions reduce the potential labour available to them.
The CIPD does not believe that employers should treat offenders as a special case. In making employment decisions about employing ex-offenders, the CIPD encourages employers to make an objective assessment, to adopt an open mind and to focus on merit and ability to do the job. This should help employers attract greater numbers of good-quality candidates, thereby improving their business performance and productivity.
While the CIPD recognises all employers have a common-law duty to provide a safe working environment and some organisations have a legal obligation to protect vulnerable client groups, it says that blanket exclusion policies should be avoided.
It says that organisations need to decide whether, given the nature of the job they are trying to fill, it is appropriate to ask about criminal records and whether to obtain a disclosure. Organisations should seek a disclosure where the position to be filled involves a degree of risk or where there is a legal requirement to do so. Disclosure should not be used as a requirement in all cases. The fact that a person has a criminal record is frequently irrelevant to the job for which they are applying.
Is a criminal record relevant?
One-third of all men and almost one in 10 women in the UK have been convicted of an offence. Given the numbers involved, HR advisers say that employers need to decide how to handle the information that will be available on people's criminal records, taking into account legal obligations and good practice.
The CIPD has produced a factsheet on employing people with criminal records5. It explains that the suitability for employment will vary, depending on the nature of the job and the details and circumstances of any convictions.
The main point is that someone should not be refused employment because of an offence that has no relevance to the job. The CIPD recommends employers should make an objective assessment that will:
focus on a person's abilities, skills, experience and qualifications;
consider the nature of the conviction and its relevance to the job in question;
identify the risks to the organisation's business, customers, clients and employees;
recognise that having a criminal record does not always mean a lack of skills, qualifications and experience; and
note that high-quality training, leading to qualifications, is available in prisons.
Nacro has similar advice and has produced a guide to help employers recruit ex-offenders, while ensuring that inappropriate candidates are not employed6. It contains a checklist of key questions for employers to ask.
Organisations that do decide to ask job applicants about criminal records should do so in such a way as to encourage honesty. Applicants should be informed at the outset if criminal-record information will be requested from them. Companies should emphasise that this information will be used only to assess the applicant's suitability for employment insofar as it is relevant and that they will be considered on merit and ability and not discriminated against unfairly.
Employers should treat details of a criminal record as a confidential matter. Only those directly involved with recruitment should be informed of an applicant's criminal record. The successful applicant should be told who in the organisation is aware of their criminal record. If the individual's line manager was not directly involved in the recruitment process, they should only be informed of the offence if it is directly connected with the job. Information on an individual's criminal record must be kept secure, with access to keys restricted to those responsible for recruitment and those in personnel.
Consideration should be given to extenuating circumstances, the nature and relevance of the offence, the potential risks involved in employing the offender, if and how these could be sensibly and effectively managed and the possibility of safeguards such as indemnity insurance explored.
The CIPD points out that there is a limit to the usefulness of information provided by disclosures as they only provide basic facts: the name and date of offences, for instance, and the sentence. It does not put them into context. This means that employers need to take into account any relevant information offered by the applicant about the circumstances that led to the offence, such as the influence of domestic or financial difficulties.
1National Institute of Economic and Social Research (2001) Barriers to Employment for Offenders and Ex-offenders, published by the Department for Work and Pensions; www.dwp.gov.uk.
2(2002) Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act.
3(2003) Moving Towards Inclusion - Ex-offenders, Skills and Learning Intelligence Module.
4CIPD (2004) Employers and Offenders: Reducing Crime Through Work and Rehabilitation.
5(2004) Employing People with Criminal Records: Quick Facts, available at: www.cipd.co.uk.
6(2004) Recruiting Ex-offenders: The Employer's Perspective, available from Nacro, tel: 020 7582 6500.
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Source: Inside Out Trust. |
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Apex Trust has developed an insurance policy for employers called the Apex Fidelity Bond. This protects organisations that employ offenders against financial loss incurred through the dishonesty of an employee. Underwritten by Lloyds in association with an insurance broker, the Apex Fidelity Bond is open to organisations that have standard fidelity-guaranteed insurance that excludes cover for employees with a criminal record. Each bond is issued to cover a named employee within a specified post. The total cost of insuring a staff member varies depending on the amount of cover required. A basic annual premium of £50 will currently provide cover of about £10,000. Higher levels of cover are available on request. For more information, contact Apex on: 020 7638 5931. |
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The Apex Trust St Alphage House, 2 Fore Street, London EC2Y 5DS Tel: 020 7638 5931 Fax: 020 7638 5977 Web: www.apextrust.com Email: jobcheck@apextrust.com Criminal Records Bureau PO Box 110, Liverpool L3 6ZZ Tel: 08709 090811 Web: www.crb.gov.uk. Email: info@crb.gsi.gov.uk Nacro Head Office: 169 Clapham Road, London SW9 0PU Tel: 020 7582 6500 Web: www.nacro.org.uk. National Offender Management
Service NOMS Programme Office, Rm 472(T), 50 Queen Anne's Gate, London SW1H 9AT Tel: 0207 273 4099 Email: NOMS@homeoffice.gsi.gov.uk National Probation Service Head Office: Horseferry House, Dean Ryle Street, London SW1P 2AW Tel: 020 7217 0659 Fax: 020 7217 0660 |
