All posts by recruitwithconviction

Hate the hatred, change the hater

I’m a tall, white, heterosexual, middle aged man and my belly is growing too big for my frame, so writing about hate crime lacks some credibility. However, I do recall being disturbed at primary school when a new boy who had moved from Africa spent his playtime with crowds of children around him making ooh ooh eee aah sounds. I still look back and wonder why there was no adult intervention.

I have remained lifelong friends with that boy and despite his adversities, he grew up to become very successful. Another friend from school moved hundreds of miles away from home because he was gay and was concerned about physical violence if he came out in a post-industrial Scottish town. In his case, I’m convinced that adversities from his childhood contributed to his premature death. Other observations of hatred and division from my Scottish childhood include derision of; English people, learning disabilities and even the labels on clothes or shoes. There is also the people of colour problem in Scotland – that orange and green thing!

Although my life started out with a low benchmark of equality and diversity, I’m not complacent about the need for improvements and I’m not complacent about my own personal unconscious bias. Sorry, I’m only human and I’m in the middle of a lifetime pursuit of observing and conquering my faults. I am improving though, even if I still struggle with negative stereotypes about Daily Mail readers!

Many factors have supported our national diversity journey.  We have moved from open hatred and frequent violence to more casual hatred masked by political correctness, however diversity training is not normally effective, unless it has an element to invoke moments of truth about unconscious bias – instead it can be counter-productive.[i] Beating people up with a diversity stick does not work – being angry and judgmental obstructs change to hatred and bigotry.

Reliably benchmarking hate crime is important for recording progress – it is better than 40-year-old anecdotes and perceptions. This can only be achieved by improving reporting rates. There is also a need to expand the scope of challenging hatred to include accents, homelessness and poverty. The abuse of roofless people by affluent weekend drinkers in our cities is particularly disturbing, regardless of any protected characteristics they have.

However, we need to be realistic about our expectations of the justice system to change hearts, minds and behaviours. I have come across too many perpetrators of hate crimes who feel victimised and over-punished, even though the aggravated offence resulted in low level court disposals.

I can recall frequent remarks which appear to genuinely imply or state that “I’m not a racist” or “they would never have prosecuted a black person”. The fact that an equalities campaigner was recently convicted for making racially abusive remarks to the Scottish Defence League linked (http://www.bbc.co.uk/news/uk-scotland-glasgow-west-37803531) suggests that absurdities may exist in the prosecution process for lower level hate crime and that many perceptions are misguided, (although I am not familiar with this case other than the linked report).

The toxicity of hate crime convictions create a long term legacy for perpetrators by over-restricting access to  employment or services such as education. Our work with recruiters has shown that a minor hate crime disposal creates exponential barriers to employment or education, if that conviction is disclosed.

We must also consider any outcomes in terms of poverty impacts. Pejorative terms associated with hate crime aggravators are common parlance among certain generations and communities. The misuse of this language within the context of a heated dispute is complex and this is especially true for individuals with communication difficulties or people who have difficulties asserting themselves.

I’m aware of hate crime survivors who later committed suicide and my final point is to consider the wellbeing of victims. There is no doubt that human adversities such as hate crime can result in long term trauma but healthy relationships are the very tonic required to heal people after adversity. I am convinced in many cases, mediation would be a much better response to achieve this than criminal justice.

In short, I am concerned that Lord Bracadale’s Review of Hate Crime Legislation in Scotland may not invoke practical improvements if it recommends increasing punitive approaches. Although hate crime remains a priority problem in Scotland, it requires all of us to step up not just the police and courts.

 

Richard Thomson

Director – Policy Development

Recruit With Conviction

[i] https://www.researchgate.net/publication/265575186_Most_Diversity_Training_Ineffective_Study_Finds

 

Recruit With Conviction draft response to higher level disclosure consultation.

The text below sets out a draft response from Recruit With Conviction to the Scottish Government consultation which proposes changes to higher level disclosure. https://consult.scotland.gov.uk/disclosure-scotland/remedial-order-2018/

We welcome any feedback from partners and stakeholders before we submit our response in November 2018. Email your feedback to info@recruitwithconviction.org.uk

Do you have any views / observations on this Proposed Draft Order?

Recruit With Conviction works to smooth the path to safe, suitable and sustainable employment for people with convictions. We welcome the opportunity to respond to the consultation on the PROPOSED DRAFT POLICE ACT 1997 AND PROTECTION OF VULNERABLE GROUPS (SCOTLAND) ACT 2007 REMEDIAL ORDER 2018

Conviction disclosure inhibits fair opportunities to compete for employment.

Conviction disclosure anxiety is a normal human reaction. This anxiety links to avoidance of applying for jobs and ineffective disclosure. In practical terms, people tend to disclose ineffectively and unassertively unless they receive specific support to do so. Such disclosure support is not widely available

Your rights to withhold disclosure of protectable convictions and your responsibilities to disclose unprotectable convictions are defined from a complex set of algorithms. – Applicants and recruiters do not understand it.

The current employer guidance on asking for pre-disclosure information for PVG, enhanced or standard certificates, necessitates a similarly complex question. Ideally recruiters should only be permitted to request unspent convictions up front because spent convictions are rarely relevant and always require confidential handling. If recruiters only  asked for unspent convictions in advance, then it would simplify disclosure for applicants and recruiters. Any spent convictions which appeared later  in the process would be unlikely to have relevance and should be easy to deal with.

Furthermore, information about spent convictions is highly confidential and this information is ringfenced from most recruitment situations. There are handling rules for this information when it has been provided by Disclosure Scotland , however other recruitment processes are not audited for secure information exchange or storage. There are risks that applicants may feel obliged to provide such information by email or non-secure webforms.

Disclosure of convictions also affects recruiters. Offender stereotypes and inaccurate associated assumptions are commonly developed in the minds of recruiters, especially where those recruiters have not been trained to deal with disclosure of convictions and in situations where conviction disclosure is rare. Therefore, any change to remove the unnecessary disclosure of  convictions should be welcomed.

The process which uses the expertise of sheriffs to make such decisions on a case by case basis appears transparent and robust. 

In relation to the partial Equality Impact Assessment, please tell us about any potential impacts, either positive or negative; you feel the amendments to legislation in this consultation document may have on any particular groups of people?

Men are about 3 times more likely to have a criminal conviction than women. Therefore, men are significantly more likely to have to disclose convictions than women. There are also significant correlations with of people with convictions to poverty and deprivation.

From a wider equalities perspective, we know that protected characteristics can create additional barriers to disclosure.  Most people carry some level of conscious or unconscious bias against individuals who appear to be “unlike themselves”.  Where recruiters have a “not like me observation” connected to a person disclosing a conviction, then different ethnicities, accents, cultural behaviours, learning disabilities etc, create a multiplying negative effect on the disclosure barriers. There is also evidence, that women with convictions are judged more harshly by recruiters than men after committing like for like offences.

Therefore, unnecessary requirements to disclose convictions have complex negative impacts on equalities and any movement to remove unnecessary requirements to disclose convictions would have a positive impact on equalities.  

In relation to the partial Child Rights and Wellbeing Impact Assessment, please tell us about any potential impacts you think there may be on children’s wellbeing. 

There is well established research which connects Adverse Childhood Experiences (ACE’s) to Post Traumatic Stress Disorder (PTSD), high levels of cortisol, poor education outcomes, poor health outcomes and prison experience.

Distressed behaviours which are linked to unresolved PTSD are commonly a root cause of offending behaviour. When the PTSD is resolved and the social determinants of adversity in a person’s life are no longer present, then that person has no reason to commit crime any more than any other person.

It would be significantly beneficial for children who suffer from ACEs and PTSD to be more able to build safe relationships with adults who understand their distressed behaviours through personal lived experience.

From a wider perspective, public and voluntary organisations which fail to recruit staff and volunteers who are representative of their patients, pupils clients and customers are not  effectively resourced to make improvements to inequalities in health, education, justice and social care.

“The Adverse Childhood Experiences (ACE) Study”. cdc.gov. Atlanta, Georgia: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention. May 2014.

Employer Guidance for Recruiting People with Convictions

The first principle of Recruit With Conviction is to select the right person for the job regardless of unrelated criminal convictions.

We recognise the importance of flexibility for employers to take up recruit with conviction. For some employers the first principle sets out a clear message that recruiters are empowered and authorised to select a candidate with convictions. Sometimes, employers seek additional social outcomes for their communities and having a criminal record may be part of being the right person.

Recruit With Conviction supports employers to move with the pace and ambition which is right for them. The approach can be discreet or it can be public but it should be underlined by a commitment to be fair to applicants with convictions.

Trapping people into poverty after they have served their sentence has created long term inter-generational sojial justice problems in our poorest communities. There is untapped potential among people with convictions, which is left untapped by widespread poor recruitment practices. This is an opportunity for employers which use Recruit With Conviction guidance.

Supporting your Workforce

Recruit With Conviction workshops are carefully provided in order to inform your workforce about safe and sustainable employment of people with convictions and allows employees to:

  • unpick myths and misconceptions about criminal histories,
  • consider connections with diversity and inclusion,
  • broadly understand the legal framework: Balancing the responsibilities of protection with the protection of rights
  • understand how disclosure of convictions affects applicants and recruiters

This can be tailored to your own recruitment or provided as a cross organisational workshop.

Supporting your Applicants

Apply With Conviction is an ongoing 5-year action research programme working with Jobcentre plus staff, careers advisers and wider employability staff to enable them to improve their support to job applicants with convictions by using an Apply With Conviction model.

Disclosure of convictions unearths complex human behaviours, including anxiety and avoidance behaviours. The main outcome is that advisers are better equipped with the following information:

  • The rights and responsibilities of applicants with convictions
  • Why, when and how to honestly disclose criminal convictions to employers

Some employers also provide direct support to applicants with convictions and this ranges from implementation of clear and fair guidance through to providing a service to applicants to help them to disclose convictions.

Banning the Box

Recruit With Conviction has worked closely with Business in the Community and other partners in the development and direction of Ban the Box UK. Removing tick-box processes from criminal record disclosure is an important element of inclusion and diversity because so many people with convictions de-select themselves as soon as they see the disclosure question.

Relevance and risk

Most convictions are not directly relevant to most workplaces so and risk assessments must fit in with any risk processes that you operate in your business. Relying on criminal history information on applicants is not a safe risk tool if it is used in isolation. It is best to speak to directly to the applicant about any concerns and find out what has changed in their lives. If you still have concerns about an applicant’s criminal history, then ask them if you can speak to their social worker or another justice professional. Also, work in partnership with a local prison, a local authority or an employment support providers because they can advise you.

Confidentiality

The starting point on confidentiality is “who needs to know”, however it is more complex than this. Sometimes convictions have no relevance to anybody else in the workplace but sometimes they do. This most important factor is to be honest with the applicant about who will be told and who won’t be. Unless the conviction history is very minor or very old then there is always a risk of the individual being “outed” by someone in the community, a colleague or an internet search. So be pragmatic and ask the applicant about what they think is best and work out the best approach with them.

 

 

 

 

Should companies get tax breaks if they Recruit With Conviction?

Recruit With Conviction aims to smooth the path to suitable, safe and sustainable employment for people with convictions – anything which improves the limited number of available jobs is worth considering.

Our first principle is that all employers should recruit the right person, for the job regardless of unrelated criminal convictions. We know that experience of prison has an exponentially close correlation with long-term poverty, low pay and unemployment and this traps people into criminal lifestyles, however this is nuanced and complex.

The failure of employers to recruit people after prison creates a glut of talent and there are employers which already choose to cherry-pick the best talent from prison and they are amply rewarded with outstanding staff. These employers take a commercial perspective and recruit the people who would be most likely to get a job. The benefit to society of recruiting directly from prison is that the individual gets a job sooner than they would normally. They are forward looking, efficient and socially aware businesses and we need more of these companies.

However, financially rewarding companies for “recruiting with conviction” would only have a marginal effect in encouraging more employers. We just need more employers to understand the merits of employing people with convictions better – for their commercial contributions rather than for state aid. Such an incentive scheme suggests that there is something wrong with recruiting people from prison and undermines the positive message. It also rewards some companies for simply recruiting the best people.

Bad recruiters adopt bias attitudes against people with convictions and will reject the right person for the job if they have convictions. Also, many people with convictions deselect themselves from applications where they are asked to disclose. After a bad experience of disclosing convictions, many people convince themselves that their convictions make them unemployable. The truth is that people tend to disclose poorly unless they are supported to do so.

A conviction is like taking a turd to work and people tend to attempt to polish the turd rather than focus on the changes they have made to their lives. Everybody knows that you can’t polish a turd and nobody wants to disclose a criminal conviction. Where disclosure is effective and honest, employers are more likely to recruit with conviction.

As stated above, the problem is nuanced and complex and it requires an evidenced solution – there does not appear to be evidence that a tax-break would work. On a practical level, no good employer would be motivated to recruit someone they perceive to be the wrong candidate because they were given a tax-break to do so. It is the employer’s perception about people with convictions which is wrong, not the level of tax that they have to pay. Our experience of employer recruitment incentives suggests that the commercial sector will always recruit the person who they perceive to be the best and then seek any incentive as a bonus. The incentives do not drive better recruitment behaviour though but deploying ban the box and training recruiters does.

While some people leave prison with the skills that employers want, other people leaving prison don’t have these skills. There needs to be a space in the labour market for them too, so that they can build skills on the job and earn a living wage at the same time. Tax-breaks for employers will not help them.

A blanket approach to tax-breaks sounds simple but if there was a few million pounds to invest, a more logical approach would be to focus this investment in labour market initiatives where social enterprises employ people with convictions. Social enterprises can balance their employment within a context of social good rather than for commercial gain. The social investments in these companies can be creative to achieve maximum gains for people with convictions. They can employ people with convictions who need to build their skills, in real life working environments before they move on.

There are a number of Recruit With Conviction partners such as Freedom Unlimited which uses the “made with conviction” brand. Braveheart Industries, All Cleaned Up and Freedom Bakery. Government investments in these enterprises would be a much better use of money than tax breaks for the corporates. There may be circumstances where payments could be made to commercial companies if they are incurring costs for recruiting people from prison but this needs to be part of a wider solution.

Government spending is always about choice and with ever decreasing budgets Government choices must be wise. If Westminster adopts tax-breaks, Recruit With Conviction will request that the Scottish Government deploys a solution which matches evidence rather than headlines. Our long standing experience of economic development relating to people with convictions suggest that tax breaks would be a white elephant.

We need strong political leaders who promote the concepts of rehabilitation to build trust in the readiness of people for employment when they leave prison.

There are however some other good ideas contained within the wider report on the following link:

http://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/news-parliament-2015/support-for-ex-offenders-report-published-16-17/

 

Disproportionate criminal record scheme in England and Wales is unlawful

22 January 2016

Today, the High Court ruled that excessive disclosure of minor historical criminal convictions in England and Wales is unlawful under Article 8 of the Human Rights Act, the right to a private and family life.

The filtering system used by the Disclosure and Barring Service (DBS) in England and Wales only allows the filtering of one minor conviction for higher level disclosure checks (for jobs which are not protected under the Rehabilitation of Offenders Act) after a number of years.

In Scotland new provisions to create protected convictions were implemented on 10 September 2015.  http://recruitwithconviction.org.uk/protected_convictions_in_scotland/ The Scottish system permits more than 1 minor conviction to be removed from higher level checks after a number of years as well as an appeals process. The failure of the DBS system to filter more than one conviction or allow an appeal, appears to be the basis of the legal challenge.

Why protect more than one conviction? Quite simply, there is no evidence that minor historic convictions link to current offending behaviour but there is significant evidence to show that minor historical convictions are linked with low pay and unemployment in the long term.

This is particularly true for women with convictions, where their median income is less than half the median income of a 24 year old, eight years after their conviction. This is excessive in comparison to the gender pay gap.

When convictions combine with protected characteristics then recruiters and selectors often have to overcome their unconscious bias  about “someone who does not look like me or sound like me”. Throwing historical convictions into the mix, allows selectors to reinforce or justify stereotyping and it has a multiplying effect of disadvantage.

The more often that a person receives or perceives discrimination, the more likely they are to mistrust disclosure processes and deselect themselves from opportunities in the future.

People with convictions become anxious about disclosing to anyone and surely after a number of years they have a right to privacy about their past.

In practical terms, nothing has changed in England and Wales yet and the Government can still appeal against the ruling.

See also

https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/disproportionate-criminal-records-disclosure-scheme-declared

 

Protected Convictions Scotland Consultation

Recruit WIth Conviction responds to the Consultation on the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 remedial order 2015

QUESTION 1

Do you have any views/observations on this Order?

Comment

This amendment will give confidence to potentially hundreds of thousands of people to take up volunteering with vulnerable groups or apply for work as a taxi driver, traffic warden, care worker or a host of other professions, however new practical problems have arisen.

New Practical Problems

People with convictions will not know if convictions are protected and recruiters tend to view any non-disclosure as a breach of trust, so a new catch22 situation has arisen.

After such long periods of time, it is unlikely that anyone will remember enough details about convictions to be confident whether or not it will be protected. Working this out is quite complex and citizens will be concerned about getting it wrong.

Protected convictions are now within the scope of the Rehabilitation of Offenders Act 1974. This creates problems for employers who can now unwittingly discriminate against an applicant who discloses a protected conviction. While guidance from Disclosure Scotland will ease some of these problems a number of solutions are still required.

Conviction Disclosure Anxiety

Conviction disclosure anxiety (CDA) is a natural response when someone is asked about their criminal convictions. Negative previous experiences of disclosure, toxic sounding conviction labels and high aspirations tend to heighten the problem. The resulting avoidance behaviour is not exclusive to serious offending histories.  In fact CDA is surprisingly common across most of the 1 in 3 men and 1 in 10 women who have a conviction marked on the Scottish Criminal History System.

Specialist services exist which support people to overcome CDA and teach applicants how to disclose appropriately. However resources for these services are increasingly tight and they tend to be directed towards a very small number of individuals with serious of persistent offending histories rather that the majority of people with convictions.

Appeal Process

An appeal process now exists, where spent convictions which are eligible for protection but have not yet passed the time period for protection.  A letter will be sent to the applicant before disclosing to their employer. It will offer them an option to either appeal to a sheriff or allow Disclosure Scotland to send the certificate on to the employer. The sheriff will then decide if the conviction is relevant to the job and can remove the conviction from the certificate. It is right that this should continue, however this process should ideally be picked up before a recruitment process begins to avoid delays for recruiters and applicants and a more general mechanism to remove unprotected convictions may be more practical. The SSSC has designed an effective process for fitness to practice and this may be a more practical mechanism and this is combined with more knowledge of regulated work compared to a sheriff.

 Required Solutions

A properly resourced dissemination framework

There is an extreme deficit in knowledge about disclosure on the part of career advisors, jobcentre plus staff, employability workers and other professionals who may support applicants.

Providing guidance on the existing Rehabilitation of Offenders Act 1974 algorithms and practical advocacy for disclosure and overcoming Conviction Disclosure Anxiety, is largely regarded as “someone else’s responsibility” – probably someone in the criminal justice system.  This mindset needs changed and the knowledge needs to be shared so that what, why, when and how to disclose convictions becomes a core skill-set of all professionals who provide employability support.

Recruit With Conviction disseminate information to employers and relevant advisers, however our work is limited by funding only from our commercial activities and re-investments. This barely scratches the surface of the problem and a funded mechanism to cascade this information should be a priority.

Employers who use higher level conviction disclosure information also need to be aware of the regulation and how they need to reframe the way they ask for conviction disclosure and reconsider the way that they handle disclosure of protected convictions so that they comply with data protection requirements.

Free on-demand access to criminal history information

Currently a citizen can only confirm the details of their criminal history by applying for a Subject Access Request to Police Scotland. This costs £10, requires copies of identification to be sent and has a turnaround period of up to 40 days. This significantly interferes with job search and still requires specialist intervention to figure out spent/unspent/protected markers.

Having spoken to police officers, Recruit With Conviction understands that this process could be easily administered at any open police station.

If Disclosure Scotland algorithms were also applied to the Police system, then each conviction could also be marked as unspent, spent-unprotected or spent-protected on a print out for the citizen.

Given the correlation of poverty and minor criminal convictions, we also believe that the £10 charge is somewhat excessive for a citizen to find out critical information which affects their opportunity to compete for employment.

 

A Disclosure Helpline

While Disclosure Scotland provides excellent technical advice through its helpline, there are a range of nuances for both employers and applicants that could be smoothed through practical support and a knowledgebase of good practice relating to intersecting problems.

Funding for Apex Scotland’s Disclosure Helpline was ceased some time ago and a void exists in the availability of such support. The MOJ support similar services for citizens in England and Wales and they are provided by NACRO and Unlock.

We recommend the resumption of a Scottish disclosure helpline with a remit to support citizens and employers. Apex Scotland and Recruit With Conviction would be happy to collaborate in providing such a service.

In most cases, a web-portal of information would be largely ineffective because the emotional needs relating to conviction disclosure anxiety are interwoven with complexities around simply what needs disclosed and when. Often individuals who seek support have not discussed their criminal conviction with anybody for years and may have never shared the information with their close family.

 

 

QUESTION 2

In relation to the Equality Impact Assessment, please tell us about any potential impacts, either positive or negative; you feel the amendments to legislation in this consultation document may have on any particular groups of people?

Comment

If communicated effectively, the right to withhold disclosure of protected convictions will have significantly positive impacts on people with convictions.

One third of men and one tenth of women in Scotland are labelled with a conviction marker and evidence from the MOJ/ DWP/ HMRC data joining project shows that even minor convictions have a long term negative impact on low pay and unemployment. Eight years after any conviction the median wage of people with convictions is around two thirds of the median wage of 24 year olds and conviction labels correlate with deeper deprivation for most minority ethnic groups and while women are significantly less likely to have criminal convictions, the median income of these women is around half the median income of 24 year olds in the UK. Beyond this, the data joining project provides data which suggests that around half of all unemployed people have at least one conviction.

Ongoing action research with a range of stakeholders by Recruit With Conviction consistently finds Conviction Disclosure Anxiety as a principle reason for people to deselect themselves from opportunities which ask for disclosure of convictions on applications. This is particularly true for many parents considering volunteering in school and other groups where their children participate.

Furthermore conscious and unconscious bias (relating to convictions) from selectors is inevitable and despite procedures to mitigate bias, training selectors is required and this self awareness transcends benefits to many other areas of equality.

Unconscious bias also has a multiplying effect where negative stereotypes intersect, for example a criminal record for somebody from a minority ethnic background or a female can be treated more harshly and in most cases a conviction legally be used to deselect that person.

Therefore the removal of clearly irrelevant convictions and communication of these rights will have a significant benefit on many groups.

 

QUESTION 3

 

In relation to the Equality Impact Assessment, please tell us what potential there may be within these amendments to legislation to advance equality of opportunity between different groups and to foster good relations between different groups?

 

Comment

With effective communication the amendments will improve equality of opportunity in regulated work. As described above, they can be particularly helpful for women and people from minority ethnic backgrounds.

However, there is an extreme deficit in knowledge on the part of career advisors, jobcentre plus staff, employability workers and other professionals who may support applicants. This problem and solution is described in more detail in the answer to question 1.

In terms of fostering good relations, the increasing criminalisation of “hate crime” is creating an increasing number of people who have particularly toxic conviction labels for low level offences such as breech of the peace.

This leaves many perpetrators of hate crime with a sense of injustice and inequality rather than the desired effect for improving community relations. Interventions using restorative justice methods as a diversion from prosecution are more likely to contribute towards community cohesion in most cases.

The toxicity of such convictions when disclosed, excludes opportunities, damages community relations and heightens perceptions of injustice. Consideration should be given to ways in which community cohesion can include people with such convictions.

 

 

 

Protected convictions – mitigating new problems

Recommendations for discussion from Recruit With Conviction to mitigate new problems relating to the speedy implementation of protected convictions in Scotland.

Background

On 10 September the Scottish Government implemented an amendment to the Rehabilitation of Offenders Act 1974 which means that some minor, historic convictions are now removed from higher level criminal record checks.

This amendment will give confidence to potentially hundreds of thousands of people to take up volunteering with vulnerable groups or apply for work as a taxi driver, care worker or a host of other professions, however new practical problems have arisen.

New Practical Problems

People with convictions will not know if convictions are protected and recruiters tend to view any non-disclosure as a breach of trust, so a new catch22 situation has arisen.

After such long periods of time, it is unlikely that a citizen will remember enough details about convictions to be confident whether or not it will be protected. Working this out is quite complex and citizens will be concerned about getting it wrong.

Protected convictions are now within the scope of the Rehabilitation of Offenders Act 1974. This creates problems for employers who can now discriminate against an applicant who discloses a protected conviction. While guidance from Disclosure Scotland will ease some of these problems a number of solutions are required to mitigate the problem.

Conviction Disclosure Anxiety

Conviction disclosure anxiety (CDA) is a natural response when someone is asked about their criminal convictions. Negative previous experiences of disclosure tend to heighten the problem. The resulting avoidance behaviour is not exclusive to serious offending histories.  In fact CDA is surprisingly common across most of the 1 in 3 men and 1 in 10 women who have a conviction marked on the Scottish Criminal History System. Specialist services exist which support people to overcome CDA and teach applicants how to disclose appropriately. However resources for these services are increasingly tight.

Similarly recruiters also have a set of anxieties and knowledge gaps but the Recruit With Conviction training to employers can only currently be provided as a commercial activity of the organisation.

Appeal Process

An appeal process now exists, where spent convictions which are eligible for protection but have not yet passed the time period for protection.  A letter will be sent to the applicant before disclosing to their employer. It will offer them an option to either appeal to a sheriff or allow Disclosure Scotland to send the certificate on to the employer. The sheriff will then decide if the conviction is relevant to the job and can remove the conviction from the certificate. It is right that this should continue, however this process should ideally be picked up before a recruitment process begins to avoid delays for recruiters and applicants.

Required Solutions

  1. Ban the Box

Implement Ban the Box as a requirement relating to the terms and conditions for employers who use Higher Level Criminal Record checks. This process is promoted by Recruit With Conviction and Business in the Community as well as a range of other UK partners. It means that the earliest time an employer should ask for criminal record disclosure is during after short-listing for interviews, however in this scenario it would relate to questioning an applicant after the disclosure certificate has arrived. This way an applicant will know whether or not they have been rejected on the grounds of their criminal record alone.

  1. Free personal on demand access disclosure information

Currently a citizen can only confirm the details of their criminal history by applying for a Subject Access Request to Police Scotland. This costs £10, requires copies of identification to be sent and has a turnaround period of up to 40 days.

Having spoken to police officers, Recruit With Conviction understands that this process could be easily administered at any open police station.

If Disclosure Scotland algorithms were also applied to the Police system, then each conviction could also be marked as Spent and/or Protected on a print out for the citizen.

Given the correlation of poverty and minor criminal convictions, we also believe that the £10 charge is somewhat excessive  for a citizen to find out critical information which affects their opportunity to compete for employment.

  1. A Disclosure Helpline

While Disclosure Scotland provides excellent technical advice through its helpline, there are a range of nuances for both employers and applicants that could be smoothed through practical support and a knowledgebase of good practice relating to intersecting problems.

Funding for Apex Scotland’s Disclosure Helpline was ceased some time ago and a void exists in the availability of such support. The MOJ support similar services for citizens in England and Wales and they are provided by NACRO and Unlock.

We recommend the resumption of a Scottish disclosure helpline with a remit to support citizens and employers. Apex Scotland and Recruit With Conviction would be happy to collaborate in providing such a service.

For wider information about our views on protected convictions see the link below.

http://recruitwithconviction.org.uk/protected_convictions_in_scotland/

Note also Disclosure Scotland has opened a consultation. See the link below.

https://consult.scotland.gov.uk/disclosure-scotland/protection-of-vulnerable-groups

 

Protected convictions in Scotland

Recruit WIth Conviction welcomes the implementation of “protected convictions” in Scotland on 10 September 2015.

Important new employment protections are to be implemented for people with old, minor convictions in Scotland on 10 September 2015

The first changes to the Rehabilitation of Offenders Act 1974 since the Scottish Government summer consultation will create a new class of “protected conviction”. This will protect the rights of many people when they apply for work (paid or voluntary) in posts which are exempt from the 1974 Act.

This change will be implemented through a fast track process to comply with European Convention of Human Rights but further changes to the 1974 Act are expected soon after.

What are Protected Convictions?

Protected convictions are minor historical convictions and they will not be disclosed on a range of Disclosure Scotland certificates, including PVG, Enhanced Disclosures and Standard Disclosures.

Similarly applicants should not be asked to disclose protected convictions during any recruitment process for paid or voluntary employment.

A conviction will only be “protected” if it is spent and categorised as “less serious” and it meets one of the 3 criteria below:

  1. The sentence imposed was admonition or absolute discharge, or the discharge of the referral of a child’s case to a children’s hearing,
  2. The person was under 18 years of age at the time the offence was committed and at least 7 years 6 months have passed since the date of that conviction,
  3. The person was over 18 years of age at the time the offence was committed and at least 15 years have passed since the date of that conviction.

Decisions to not protect convictions will be subject to an appeal process.

Implications for employment and policy

1 in 3 men and 1 in 10 women in Scotland have at least one conviction listed on the Scottish Criminal History System. These convictions are typically minor and historic but they can have a negative long-term impact on individuals. Even minor criminal records correlate with low pay, under-employment and unemployment.

People are commonly embarrassed and anxious about their actions during low points in their lives and avoid applying for work (paid or voluntary) if they are required to disclose historic convictions. Disclosure anxiety is natural but can be worsened by bad experiences and generally people need support to overcome this.

Beyond this, there are ongoing examples where people are disproportionately deselected by overzealous recruitment administrators on the grounds of very historic minor convictions. Similarly recruiters need support to overcome conviction risk anxiety.

In order to provide relevant guidance, all employability workers should have practical knowledge of the following:

  1. The difference between a protected and unprotected conviction and when it is relevant
  2. The difference between a spent and unspent conviction and when it is relevant
  3. How to disclose convictions effectively when it is required
  4. The wider complexities of conviction relevance
  5. How to work out if a conviction is spent or protected

Note: these elements are covered in Apply With Conviction Workshops and wider employability good practice can be woven into events.

In order to comply with legislation and select the right candidate without bias, all recruiters should have a practical knowledge of the following:

  1. Unconscious bias and the difficulty in assessing criminal record information objectively
  2. The difference between a protected and unprotected conviction and when it is relevant
  3. The difference between a spent and unspent conviction and when it is relevant
  4. When and how to ask for criminal record disclosure effectively
  5. How to work out if a conviction is spent or protected

Note: these elements are covered in Recruit With Conviction Workshops and wider recruitment good practice can be woven into workshops.

 Further information

http://www.legislation.gov.uk/sdsi/2015/9780111029329

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-34187035

http://www.heraldscotland.com/news/13654987.Ministers_scramble_to_change_law_over_fears_criminal_record_checks_breach_human_rights/?ref=twtrec

 

Inclusion with Conviction

This is the Recruit With Conviction submission to the Scottish Parliament Equal Opportunities Committee  inquiry into race, ethnicity and employment:

A criminal record is rarely a single barrier and it disproportionately intersects with victims of crime, deprivation, male gender and minority ethnic backgrounds.  Beyond this there are complex dynamics when criminal convictions intersect any protected characteristic and empathy may be challenged by unconscious bias in relation to age, disability, gender reassignment, sex, race, religion or belief, sexual orientation, marriage and civil partnership and pregnancy and maternity.

Where the criminal record marker intersects minority ethnic backgrounds and poverty then ethno-cultural empathy is particularly challenged. Decisions can be influenced by the recruiter’s unconscious bias relating to a “person who does not look like me or sound like me” and then the bias can be increased disproportionately because the applicant also has a criminal record.

1 in 3 men and 1 in 10 women in Scotland have at least one criminal conviction and the conviction marker correlates with low pay, unemployment and transient employment.

Evidence from England and Wales 1.“Experimental statistics from the 2013 MoJ /DWP /HMRC data share: Linking data on offenders with benefit, employment and income data” which tracked incomes of more than 4 million people with criminal convictions shows significant disadvantage in the earning of people from different ethnic backgrounds who also had a criminal conviction. These figures were calculated 8 years after their conviction/caution or release from prison.

Median annual wage of people with criminal records from different ethnic backgrounds in 2011/12

White – North European £14,600

White – South European £10,700

Black £11,400

Asian £11,700

Chinese, Japanese or South East Asian £12,400

Middle Eastern £8,700

Unknown £16,500

Total £14,300

No direct general population comparison is available in the research, however the Annual Survey of Hours and Earnings, which calculates the figures on a different basis, shows that the median amount of earnings for UK employees aged 16 and over in 2011 was £21,100

Recruit With Conviction partners in England have provided anecdotal evidence that recruitment drives for positive discrimination on the grounds of ethnicity tend to be more successful where recruiters are empowered and authorised to select candidates with convictions.

For a wider international context, Pepsico were fined $3.13m in the USA for applying blanket bans on recruiting people with markers against criminal background checks. The fine specifically related to indirect discrimination on the grounds of race because people from minority ethnic backgrounds were disproportionately disadvantaged.

The above information relates specifically to cultural dynamics outside Scotland where minority ethnic backgrounds correlate closely with poverty. This has been presented because there is an evidence gap relating to the impact of previous convictions intersecting with minority ethnic backgrounds in Scotland.

While the committee might view this evidence as peripheral, we would argue that it should be a central objective to ensure that the most excluded people within any disadvantaged groups should be a priority for support in a fully inclusive Scotland.

  1. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/304411/experimental-statistics.pdf
  2. http://recruitwithconviction.org.uk/18pepsico-pay-out-millions-because-they-didnt-recruit-with-conviction/

Scottish Consultation on reforms to the Rehabilitation of Offenders Act 1974

All of the proposed amendments can be implemented without delay. The original Rehabilitation of Offenders Act 1974 was designed as a catch all and passed through parliament in 1974 without an exemptions order for care workers, nurses or taxi drivers etc. etc. etc., so the existing disclosure periods are excessive.

Modern technology including forensic science as well as improved child protection arrangements have allowed the courts to prosecute serious offences more often and to link serial offences more to the same individuals. This has resulted in longer sentencing (due to evidence capture of more crimes) and more appropriate supervision of people with convictions. This would have been impossible in 1974.

With the continuing existence of exclusions and exemptions to the 1974 Act for a wide range of professions and the modern public protection mechanisms from more serious offenders, we broadly agree with all of the proposals to change disclosure periods which have been set out in the proposals.

To allow even shorter and more realistic disclosure periods for most people with convictions would require structural changes within the Act, but we believe that all the proposals are consistent with the requirements for safe and sustainable employment and are suitable as a stop-gap until more robust primary legislation is implemented, which could properly contribute to the rehabilitation of people with convictions.

Further measures to protect and inform employers were implemented in the Police Act (Scotland) 1997, the creation of Disclosure Scotland and the Protecting Vulnerable Groups (Scotland) Act 2007. Combining the availability of this information and the advances in the internet, there has never been a time in history, when so much criminal record information has been available.

With these existing mechanisms as well as the provisions of MAPPA in the Management of Offenders etc (Scotland) Act 2005, the safety nets in the Scottish criminal justice system are robust enough to completely remove criminal record disclosure for work which is not currently defined in the Exclusions and Exemptions Order (Scotland) 2013.

Therefore all convictions could realistically become immediately spent without presenting substantial risk however we concede that the required caveats may be too complex for secondary legislation. This could be unpicked more fully within new primary legislation.

The proposals will allow Scotland to catch up with reforms which were implemented in England and Wales in March 2014. Those reforms are already making a significant contribution to; the performance of welfare to work, tackling poverty, improving public health and promoting a fairer and more equal society in England and Wales.

While these impacts are positive, “rehabilitation” is still omitted from the Rehabilitation of Offenders Act, in that individuals who have not been reconvicted within their rehabilitation period could not reasonably still be described as ‘offenders’ and even if the proposals are implemented in full, the Act will still offer no protection for people with unspent convictions. This means that the proposals offer no immediate benefit or practical incentive to people when they leave prison.

Therefore we welcome an acknowledgement in this consultation paper that a broader consultation for new primary legislation is still required in Scotland as soon as possible.

The new consultation should seek to develop proposals for the following:
• Primary legislation with a title which is fit for purpose, such as the Opportunity to Compete Bill. The title of the 1974 Act conveys negative messages where citizens returning from prison are called “offenders” and it implies that they are not rehabilitated until considerable time periods have elapsed after their conviction. If disclosure is required then these rehabilitation periods would be better described as disclosure periods.
• A process of removing disclosure periods completely or reducing disclosure periods for more serious offences which is based on engagement in services, evidence of changed behaviour, risk benefits and the development of personal resilience. Within this there should be a presumption that nobody who is released from prison should face a lifetime of “disclosure” (or what is commonly described as a “second sentence”) without a process of appeal.
• A review of the exclusions and exceptions to the 1974 act where there is currently no protection for people from discrimination and stigma over very minor and very old convictions.
• The potential of a well designed quota based system where some employers would be required to employ people with unspent convictions. While quota systems are controversial and potentially beyond the powers of the Scottish Parliament, this avenue should at least be open for discussion.
• A requirement for all recruiters (in receipt of disclosure information) to be properly trained to make proportionate decisions and for those recruiters to be empowered and authorised to select a person with a conviction or convictions if they are the right person for the job.
• A right for employers to be supported in risk assessment.
• Measures to consider mitigation of the “Google effect” where failure to ask about criminal history is not the same as avoiding discrimination as well as the complications in managing the confidentiality of spent convictions.
• Addressing the knowledge gap among many key workers about effective pathways to employment for people with convictions.
• Ensuring that all citizens have free, available and accessible information about what and when they need to disclose about their convictions for the purpose of employment. This should include the ability to undertake a check for the purposes of PVG prior to applying for a vocational course for “regulated work”.
• Implementation of Ban the Box processes where any disclosure requirements for the purposes of employment are delayed until after an individual has been selected for interview.
• A statutory right for people with convictions to access specialist support for enhancing skills and finding work which is tailored to their hopes and plans.
• A common sense approach to disclosure of convictions for breaches whereby the current proposals still create disclosure time spans which are excessive.
• Inconsistencies in the information available to employers based on which part of the world that an individual committed their crime. There is no evidence of any risk to employers created by the shortage of criminal history information on foreign nationals.

  • Additionally new legislation should seek to specifically find solutions for criminal records intersecting other employment barriers because the stigma of criminal convictions can be worsened for women, people from minority ethnic backgrounds and when the conviction intersects mental health problems. Similarly, conviction labels which include terms such as “racially aggravated” or “domestic” or relate to sex-offending, significantly impede opportunities to compete, even if they are minor offences and sentenced lightly.

This list is by no means exhaustive but highlights some of the limitations to the structure of the 1974 Act to support rehabilitation.

New legislation which supports people with convictions to find and keep meaningful employment, would undoubtedly make critical contributions to Scottish Government policy objectives for health inequalities, diversity, inclusion, poverty, economic development and welfare to work, as well as reducing re-offending.

Findings from Recruit With Conviction action research workshops show that disclosure of even minor criminal conviction can escalate anxiety in the mind of recruiters and this often leads to unfair and unreasonable de-selection. Similarly people with minor convictions often adopt avoidance behaviours when confronted with questions about criminal record disclosure and seek employment in situations where they are not asked, therefore diminishing their own opportunities for suitable employment.

Criminal convictions are most likely to statistically impact male unemployment and by comparing male unemployment trends between Scotland and rUK since the implementation of changes to the Act in rUK, we hope to illustrate potential impacts of reforming the Act.

This graph which was created using data from ONS. It shows a clear trend of Scotland performing ahead of the UK for male unemployment until March 2014 and then lagging behind after Westminster reduced disclosure requirements in England and Wales. This is interesting because it is consistent with Recruit With Conviction findings. Men are 3 times more likely to have a criminal conviction than women and convictions correlate much more closely with unemployed people.

graph
graph

Reports (1) on 31 May 2015 show that Scotland has the lowest female unemployment rate in Europe.

Using big social data like this creates risks for bad social science because causality is rarely able to be defined in correlations. So while this graph neatly illustrates a point, the qualitative evidence and the logic is more compelling and we accept that there are always many competing factors and the policies of targeting resources for female employment in Scotland is another likely contributing factor to the performance of men and women in the Scottish labour market.

It should be noted that while females with criminal convictions are less statistically significant, criminal conviction disclosure for woman is even more stigmatising and previous convictions have greater impact in the labour market for women individually.

(1) http://www.bbc.co.uk/news/uk-scotland-scotland-business-32950469

Recruit With Conviction promotes safe and sustainable employment for people with criminal convictions by working with employers and employability specialists in workshops and ambassador networks. Each workshop aims to both disseminate information as well as inform the knowledgebase about effective practice.

While workshop participants start off with varying degrees of understanding, we strive to respect feelings of participants but challenge misconceived perceptions and promote equality, diversity and inclusion by threading through understanding of unconscious bias about other barriers to employment which are faced by our most vulnerable friends and neighbours.

Please take the time and make your response to the consultation which is available on the link http://www.gov.scot/Publications/2015/05/5592