Supporting the rehabilitation of offenders in employment: opportunities and legal considerations for employers

The government’s strategy is working to challenge the view that a criminal record should be a barrier to employment. It recognises that a failure to rehabilitate can increase the risk of re-offending, but also that getting more prison leavers into employment grows the economy and cuts crime. This drive also aims to encourage employers to consider hiring prison leavers to help to break this cycle.

Supporting rehabilitation: new schemes

Providing training and opportunities to find work for people leaving prison is a key part of our justice system. It’s crucial that employers are aware of the role they can play in this rehabilitation process. The Prisons White Paper, published in 2021, has seen the launch of a number of interesting initiatives. One example, supported by a number of well-known businesses including Lotus Cars, Greggs, the Co-op, Iceland and Oliver Bonas, is Employment Advisory Boards.

Launched in March 2022, the key ambition of the scheme is to help ex-offenders into “stable jobs” and “break the cycle of crime”. Business experts from these companies have taken up positions as EAB chairs across 92 prisons. They support prisoners approaching the end of their sentence by sharing insights and expertise on the skills and qualifications needed to re-enter the workforce. By identifying the demands of local markets, they also facilitate the development and tailoring of training and workshops.

Following on from this success, the government is encouraging business involvement in a number of other schemes which bridge the gap between prison and employment. These include:

• The Future Skills Programme: This programme helps employers and training providers to deliver training to prison leavers as they near the end of their sentence. Those involved are asked to provide a job interview or offer on release for those who complete the course.
• HMP Academies: Employers are able to host spaces in prisons which mimic their normal premises, training people for employment on release.
• New Futures Network: This is a specialist part of the prison service which brokers partnerships between prisons and employers. The network has been involved in recent campaigns such a July’s ‘unlocking retail and logistics’ event.

In the charitable sector, a number of organisations also work to help employers understand the role they can play in rehabilitating and engaging those leaving prison and with criminal records more generally. For example, Unlock (a charity which supports those living with criminal records) seeks to help employers understand the law around criminal records by offering criminal record disclosure training and recruitment advice.

Recently, the Goods Jobs Project, led by business charity ReGenerate, aims to help address the UK’s labour shortage by assisting marginalised groups – including prison leavers – to gain employment. As government data indicates that within 12 months of leaving prison, only 17% of ex-offenders are in work, the Chief Executive of ReGenerate believes that this indicates the solution to the current shortage of workers in this country is “hiding in plain sight”.

Business benefits

The potential to address labour shortages shows that the benefits of recruiting those leaving prison cut both ways. Guidance published by the Ministry of Justice in March 2023 points to the wide-ranging benefits for employers of working with people with criminal convictions and engaging in schemes that aim to support prison leavers into employment. These include:

• Reducing recruitment costs: By engaging with government schemes and opening recruitment up to prison leavers, overheads can be cut.
• Reliability and increasing staff retention: Employers suggest that prison leavers place higher value on obtaining and retaining a job due to their desire to stay out of prison. A poll commissioned by the Ministry of Justice in 2021 found that over 90% of businesses employing ex-offenders deemed them “reliable, good at their job, punctual and trustworthy”.
• Diversity, inclusion and social responsibility: Over two in five employers say recruiting ex-offenders has increased the diversity of their workforce.
• Resolving skills shortages: One in three organisations find that they are unable to resolve skills gaps, which can have a negative impact on productivity. As prisons can teach a variety of industry level skills, prisoners can achieve professional qualifications which enable them to fill these gaps.

Attitudes of employers are changing, as indicated by a survey by the charity Working Chance showing that 45% would hypothetically recruit someone with a conviction, up from 25% in 2010. But that, of course, leaves over half reluctant to do so.

Policy in practice: should you ask?

For employers willing to take a pro-active approach and become involved in training and support for those who are still in prison, there are clearly opportunities. However, for many employers, this ties into a broader – and difficult – question about the extent to which a prospective employee should, and indeed can, be asked about their criminal record.

This, of course, catches a wider group than those who have been in prison, and the impact on an individual level of asking applicants about their criminal record is very significant: research shows that among a range of groups generally considered to be disadvantaged in the labour market, people with convictions have the lowest interview-to-hire conversion rates. It’s therefore important for employers to take a step back to consider whether they can, and indeed should, ask an applicant to either self-disclose any prior conviction or to agree to criminal record (DBS) check.

For most jobs, employers are not legally obliged to ask prospective employees about their criminal record. There are exceptions to this, which are addressed below and here, but in the majority of cases the employer has a choice to make.

Why are you asking?

The first question for employers to grapple with is why are they asking about an applicant’s criminal record history. Is investigating an applicant’s criminal record necessary to achieve that aim? Research indicates that the main deterrents in deciding whether to hire someone with a conviction are: that it would be contrary to company policy; that it could impact on the organisation’s insurance policy; and, last but certainly not least, the risk of reoffending.

Employers should consider whether those risks, or perceived risks, could be addressed another way. Policies can, of course, be more nuanced and insurance policies revised. And on the question of reoffending, as supporting people with convictions in employment cuts reoffending rates, recruitment policies that aim to protect the business from this risk feed into a vicious cycle.

Can you ask?

For certain roles – particular those in which the applicant will be working with children or vulnerable adults – finding out about past criminal offences is an essential part of safer recruitment practices. Such roles and occupations are listed in what is known as the “Exceptions Order” and in these cases, employers are entitled to ask an individual about their full criminal history (see DBS guidance here).

However, exceptions aside, if an employer decides that it wants to learn more about an applicant’s history by asking about criminal records, it must ensure that this is legally permissible by considering the factors below. As explained, this is likely to be the exception rather than the rule.

• Data Protection: The first and foremost consideration is data protection. Data protection law treats information about criminal offences as being particularly sensitive and therefore requiring greater protection than personal data ordinarily does. Data ‘relating’ to a criminal offence is a broad category of information, including information about alleged offences or information that someone does not have a criminal record.

To process this information, employers must:

• Comply with the normal safeguards by satisfying one of the Article 6 UK GDPR general data processing conditions (of which consent could not be relied on as it would not be freely given).
• Satisfy the additional layer of protection under Article 10 UK GDPR. This means that unless the employer has official authority for processing the data (which is unlikely to apply), one of the 28 conditions under Schedule of 1 of the Data Protection Act must be satisfied. The most relevant conditions are likely to be that the processing necessary for “performing obligations or exercising rights conferred by law” (paragraph 1) – potentially covering mandatory checks for working with children and other vulnerable groups – or “preventing or detecting unlawful acts” (paragraph 10). For these conditions to be satisfied, processing must also be necessary to achieve those purposes and must be a targeted and proportionate means of doing so – potentially a high bar to meet. If the employer’s purpose is not covered by one of these conditions, the criminal offence data can not be processed (as explained by the ICO here).
• In addition, employers must ensure that the processing is generally lawful, fair and transparent. In this context, this requires that an appropriate policy document is in place and that a data protection impact assessment has been undertaken.
• Linking to the question of necessity and proportionality is when in the recruitment process the question about criminal records is asked. Unlock’s Ban the Box campaign encourages ‘fair chance recruitment’ by employers by removing the tick box from applications, and instead recommending that candidates are asked as late as practicable in the process.

• DBS checks: If the employer is able to lawfully process criminal record data, it may ask the applicant directly about previous convictions, or may seek to obtain a DBS certificate detailing convictions. There are three levels of DBS check, ranging from basic, which shows only information on unspent convictions (i.e. those for which the relevant rehabilitation period has not yet expired), to enhanced, which catches a wider data set, including unspent convictions, cautions, and information held by the police. If an employer does request a DBS check, it must ensure it is the right one; knowingly requesting a higher level of check than is necessary is a criminal offence.

As we explain here, standard and enhanced checks can only be obtained for those working in certain roles or professions - typically those involving a high degree of trust, covered by the Exceptions Order. This tool can assist employers in determining which check is appropriate. If an employer wishes to ask candidates to disclose information about their criminal record, it is good practice to make this clear from the start of the recruitment process. It’s also advisable to inform applicants what information will be requested, why, and at which stage of the recruitment process.

Assessing the information

Another consideration for an employer is how to assess information it obtains about a candidate’s criminal record. Again, this is something requiring a balanced judgment. Unsurprisingly, evidence strongly indicates that the type of offence committed will impact strongly on a candidate’s employment prospects, with driving offences and those relating to alcohol at one extreme, and sexual offences the other.

How an employer proceeds will, of course, be context specific – for example, if a candidate is applying for a job as a driving instructor and discloses a driving conviction, they may not be suitable. There will also be some instances where disclosure of a criminal record means a candidate cannot be employed, especially for roles which require employees to work with children or vulnerable people. For some sectors (such as education, legal, and financial services), there may also be industry specific guidance which determines whether an employer can hire the individual.

More generally, though, it is beneficial for employers to be structured in the way they approach this assessment. The following factors will assist with this:

• The individual’s age at the time of the offence.
• How long ago the offence took place.
• Whether it was an isolated incident or part of a pattern of offending.
• The offence itself.
• Its relevance to the role.
• The person’s conduct before and since the offence.
• Any explanation the applicant provides.

The question of whether the conviction is spent should limit the exercise of discretion. If either self-disclosure or a DBS check reveals a spent conviction, unless the role is an excepted one, it is unlawful for an employer to dismiss or refuse to employ someone because they have a spent caution or conviction. That said, the relevant provisions of the Rehabilitation of Offenders Act lack teeth, attaching to no specific sanction.

Putting this into practice

Open recruitment practices that will not rule out those leaving prison or, more generally people with a criminal record, can benefit both the employer and candidate. But there are difficult decisions to make in the course of this process. There are a few practical steps employers can take to assist with this:

• Have a policy – as well as a being a requirement to comply with data protection obligations, a clear policy on whether, when and why questions about criminal records will be asked, and what approach will be taken to those who disclose, will help ensure that a consistent and principle driven approach is taken.
• Document decision making – this will embed the application of the organisation's policy and demonstrate compliance with it.
• Support programmes – reports suggest that employers with experience of working with people who have left prison estimate that as many as two thirds need support with issues such as addiction and mental health before they can effectively take up employment. Successful recruitment therefore often starts with training academies and partnerships pre-release. For many organisations, directly initiating this kind of collaboration is unrealistic but, as set out above, there are a range of organisations and partnerships active in this field that could facilitate this process.