Category Archives: Recruitment

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. 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


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.


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.

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


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


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.


Welfare to Work and Reforming ROA1974 in Scotland

In March 2014 the UK Government implemented new employment rights to people with criminal convictions by reducing the length of time until most convictions are deemed spent. These changes covered England and Wales only. The consultation to change this legislation was launched in Scotland on 20th May 2015.

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.

By comparing unemployment trends between Scotland and the UK we hope to illustrate this point.


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.
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. 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.


Reforming ROA 1974 – An Opportunity to Compete

Further delays to reforming the Rehabilitation of Offenders Act 1974 in Scotland would restrict the effectiveness of government policies on welfare to work, diversity, health and reducing re-offending .

The news on 20 May 2015 that the Scottish Government are consulting on proposals to change this is very welcome.

Recruit With Conviction employer workshops consistently uncover bias when convictions are disclosed to recruiters. The employer workshops also show that recruiters need both empowerment and authorisation to select applicants who disclose their criminal convictions.

However, employers should be at the heart of designing safe and sustainable employment solutions, so we warmly welcome this approach by the Scottish Government to listen to the voices of the business community.

Beyond this, minor criminal convictions commonly correlate with long term unemployment and poverty – clearing minor convictions faster is a pragmatic solution to help more people find work and stay in work.

Changes to the 1974 Act were implemented in England and Wales on 10th March 2014. They generally shorten the length of time that convictions can be considered for the purpose of recruitment for most jobs.

The changes helped Tracy from Wigan. She was arrested for holding a small quantity of drugs at a music festival and fined £300 in court in April 2013 when she was a student.

Under the changes to the legislation in England and Wales, fines normally become spent after 1 year which was great for Tracy. She graduated in June 2014 and so she had full protection from discrimination on the grounds of her conviction when she applied for work.

However if Tracy had applied for a job in Scotland, then she would need to disclose this conviction for 4 more years under the terms of the 1974 Act.

1 in 3 men and 1 in 10 women of working have a criminal conviction and even minor historic convictions correlate with unemployment, underemployment and low pay as applicants gravitate to less formal employment where conviction information is not requested by employers.

Therefore reforming the 1974 Act will support the wider welfare to work strategy.

There is also a correlation with minor offences and poverty so the criminal conviction issue is a more common barrier to finding work for people in the poorest communities. To compound the problem, areas of high unemployment and deprivation make the dynamics of local labour market favour employers rather than applicants. Our experience of working with employers in different areas has demonstrated examples where more employers in Aberdeen are better prepared to accept people with complex convictions. In sharp contrast there are employers in North Ayrshire who use criminal record disclosures as an automatic de-selection tool because they receive too many applications.  Dr Colin Lindsay at Strathclyde University has also undertaken research which shows that employers deploy more diverse recruitment practices in areas of low unemployment.

The problem of de-selection also relates to spent convictions because filtering of minor convictions  do not apply for people with Scottish Convictions. This is a concern for anybody applying for a job which is exempt from the provisions of the 1974 Act. Care work is a common career aspiration and the failure of Scottish disclosure systems to filter out some of the irrelevant convictions causes another specific barrier.

While Tracy from Wigan was never a chaotic drug user, Brad from Liverpool has a history of chaotic drug use and was convicted a number of times for various minor offences. All of his convictions relate to periods of time when his drug use was at its worst.

Recruit With Conviction delivered training to a number of Drugs workers in Merseyside and set out opportunities where changes in the 1974 Act could be used as an incentive in recovery where many individuals have a long history of minor convictions and no prison sentences. With a short rehabilitation period, people in recovery can look forward to an achievable time frame when their record is (sort of) wiped clean. This is very powerful emotionally for people in recovery who harbour a deep sense of guilt about their past and it can be used positively. Of course any recovery plan needs to be personalised to an individual but there are clear opportunities for support workers to help bind things together positively.

Even when Brad had a relapse in August 2014, his support worker was able to establish that he’d not stolen anything and he’d not been arrested so his rehabilitation from the criminal system was still intact. Therefore he was able to refocus on drug recovery without having to start all over again and he has also found employment.

Even minor convictions can be a root cause of anxiety and self doubt present a number of barriers to recovery from addictions and mental health problems.

By enabling opportunities for people to compete for employment, people with convictions are more likely to find the right job.

The right job for the right person is a very effective intervention. It can stop the escalation of minor crime turning into more serious crime and it can also provide a valuable second chance for people with more serious convictions who are liberated from prison.

While core improvements need to be made in employer engagement and in employability support, legislative changes have the potential to make a critical contribution.

Note: In 2013 Recruit With Conviction facilitated a number of stakeholder discussion events on reforming the 1974 Act on behalf of the Scottish Government.

Enforced Subject Access – Practicalities

Recruit With Conviction warmly welcomes the commencement of the Data Protection Act Section 56, which criminalises the practice of enforced subject access relating to criminal records for the purpose of employment or the provision of services from 10 March 2015.

This is quite distinct from using disclosure certificates appropriately.

In our broad experience of working with employers and employability advisers, we have seen a remarkable decrease in any evidence relating to enforced subject access for the purposes of employment.

While it is ironic that an employer can now pick up a criminal conviction for forcing a job applicant to inappropriately disclose theirs, employers which adopt Recruit With Conviction approaches will have no problems.

We have been discussing this with the Information Commissioner’s Office and there is a broader and more complicated impact for employability advisers. The criminal record subject access information is a valuable tool in the Apply With Conviction approach but advisers will be committing a criminal offence if they ask for it in an inappropriate manner.

Within all Apply With Conviction workshops we highlight the confidentiality of criminal conviction information and the respect with which it should be handled as well as the right use of language to talk about criminal record subject access with service users.

Quite clearly criminal record information is very sensitive. It belongs to the service user and it is their choice to share subject access with anyone. It should always be clear that this is not a condition of participating in a service and is in no way linked to their benefit entitlement.

Extract from Information Commissioner’s Guidance (1)
An individual who requires someone to make a subject access request is committing a criminal offence. This is an offence which can be heard either by a magistrates court or a crown court, in England, Wales and Northern Ireland. In Scotland it will be heard in a sheriff court.

Committing such an offence in England and Wales can carry an unlimited fine, while in Scotland the fine
can be unlimited if heard under solemn procedure or £10,000.

In Northern Ireland, the maximum fine if convicted under a summary offence is £5000, or if convicted on indictment the maximum fine is unlimited (unless expressly limited by statute).


Ched Evans

Should a person who has been convicted of rape, be allowed to work in a very high profile position where he is adulated by impressionable young people?

The publicity of the Evans conviction has highlighted some of the legal issues about sexual consent to a wider audience and hopefully this will result in some constructive debate and improved attitudes towards sexual violence. Any contribution to reduce sexual violence needs careful consideration.

Reducing crime fundamentally improves our quality of life and sustained employment is the single most important factor in reducing re-offending.

While employment empowers positive change the Ched Evans case has complicated cause and effect implications. If Ched Evans’ returns to professional football, would this represent acceptance or normalisation of sexual violence?

We don’t know for sure but vile threats towards Jessica Ennis-Hill after her intervention suggest that there is some merit to this argument but is Ched Evans responsible for the comments and attitudes of others? He has never publicly promoted sexual violence as a means of response to disagreement.

Evans’ return to football would have been smoother, if he had demonstrated reform and remorse but instead he has chosen to appeal his conviction. For the time being, he is a convicted rapist but his co-defendant is not. The behaviour of both men on that night was fundamentally wrong and we have a wider challenge to improve the attitude of some young men towards women more generally.
Taking responsibility is a critical component for safe and sustainable employment in the Apply With Conviction and Recruit With Conviction models. Failure to take responsibility can occur if an individual is in denial and genuinely fails to understand the consequences of their behaviour. This is intrinsically linked with self preservation. More rarely, it is the result of a miscarriage of justice but that is a matter for the courts – not intuitive beliefs based on one side of an argument.

If Evans wins his appeal then public knowledge of what really went on that night will not change much but he will be relabelled from a rapist to a victim in a miscarriage of justice. In reality those words are hollow but similarly other terms like “offender” or “murderer” mask many other truths.

Ched Evans is a footballer, he has a talent for football that is rare and is perhaps only found in 1 in every 100,000 people or more. But what does it say about our society if we seek moral guidance from somebody on the grounds of their wealth or ability to kick a ball rather than their compassion and decency?

He has been convicted of a serious crime and served his prison time. Banishing him from his profession and denying him the opportunity to compete for work is an understandable moral gut reaction. After all, rape is a disgusting behaviour. However, Evans is now one of the most vilified and marginalised people in our society. He is a national figure of hate but he is also a human being with many perfections and imperfections. So while our gut reaction is to repulse against vile behaviour, a sound analysis of the facts suggests that our society is better served by stopping the hatred and letting him work. If Ched Evans and others like him are allowed to fulfil their potential and develop compassion, rather than get angry, self destruct and harm other people, then the world will be a slightly better place.

Employment is widely used to support rehabilitative processes across a broad spectrum of problems which affect human beings. This includes criminality, addictions and mental health issues. With a little creativity and collaboration, rather than witch-hunts and tribal fighting then great outcomes can be achieved. A football club could work with Evans, his probation officers and others so that this young man can develop positively, perhaps donate a significant proportion of his large salary to charity and play the beautiful game.

Jobs for people with convictions? – A public policy result!

Changes to the Rehabilitation of Offenders Act 1974 in March 2014 for England & Wales have made a critical contribution to the latest fall in UK unemployment. We cannot quantify this without further robust research but here are a few interesting facts to consider:

  • 4.3 million people with convictions in England & Wales represented 28% of all people claiming Job Seekers Allowance in the UK according to the MOJ data joining report published in January 2014 (1)
  • The 1974 Act improvements in March 2014, have removed the requirement to disclose convictions for the purposes of most employment – for potentially about 1.8 million people according to research from UNLOCK. (2)
  • The unemployment drop is strangely paralleled with a drop in wages – a fact which defies Labour Market logic
  • The labour market recovery in the rest of the UK has caught up with the labour market recovery in Scotland – both now sit at 6.4 % but Scottish changes to the 1974 Act are still under review. (3)

While there are many more factors which impact labour markets such as sanctions and conditionality to benefits and wider economic growth, the drop in unemployment is a success and the 1974 Act changes will have contributed.

The 1974 Act changes should now lay a pathway for other difficult political justice decisions which are sensible but counter the populist prattle of Mail, Express et. al. For example,

  • Delivering on promises to reduce short term prison disposals
  • Implementing radical reforms to the 1974 Act in Scotland more hastily and making further improvements to the act in England and Wales. See UNLOCK’s proposals (4)
  • Properly funding community justice
  • Making prison less harmful to vulnerable prisoners
  • Providing throughcare services which best support recovery from incarceration
  • Supporting services like Recruit with Conviction to help change recruitment cultures to open up job markets for people with convictions and engage community conversations about criminal justice which are better informed than frighten, flog and f*** the consequences.

Of course some of this is already being achieved but the successful results of changing the 1974 Act, gives a strong mandate for even more common sense!






Scottish colleague update

Dear colleague,

On 10th March 2014, the 1974 Rehabilitation of Offenders Act will be revolutionised in England and Wales. Up to 1.5 million people every year will no longer have to disclose their convictions for most jobs.

These changes will not apply in Scotland and it is important that advisers are very clear about this. Incorrect advice can significantly obstruct job opportunities. For example, over-disclosure of convictions when there is no requirement or in this instance under-disclosure which can be as obstructive.

From research in England, we believe that around 45% of people claiming JSA have a criminal conviction (excluding driving endorsements) so this is a mainstream issue – but sometimes specialist support is required.

Recruit With Conviction Ltd is the not for profit organisation committed to promoting safe, effective and sustainable employment for people with convictions. Please note that we do not deliver direct services to individuals and if specialist support is required then you should make an appropriate referral to your local specialist service. e.g. Apex Scotland, Access to Industry or JCP Disclosure Service in the West of Scotland.

The Scottish Government is working to develop a unique solution for Scotland. We along with a number of additional partners are supporting this work but no changes are imminent.

For more information about the employment of people with convictions and training for advisers and employers, please see our website

We would be grateful if you could forward this information to colleagues.

Richard, Roger & Dughall.

Directors Recruit With Conviction Ltd