Disclosures, law and practice

Disclosures, law and practice

A handbook for shop stewards, trade union

officials, employment lawyers and others

‘This handbook will be invaluable for anyone supporting people subject to

Disclosures, law and practice

Nacro 2006

169 Clapham Road London SW9 0PU Telephone 020 7582 6500 Fax 020 7735 4666

www.nacro.org.uk

www.resettlement.info

ISBN 0 85069 212 1

Nacro is a registered charity no. 226171

© Nacro 2006

Nacro welcomes a wide circulation of its ideas and information. However, all reproduction, storage and transmission must comply with that allowed under the Copyright, Designs and Patents Act 1988, namely for purposes of criticism or review, research or private study, or have the prior permission in writing of the publishers.

If you have particular

needs which make it

difficult for you to

read this, contact

020 7840 6433 and

we will try to find a

more suitable format

PhotosCover left, Frank Manning Photographers, [email protected]; cover right, Mark Harvey, [email protected]; cover second and third from left, www.johnbirdsall.co.uk Please note that the form on the front cover is a mock up

Nacro is very grateful to everyone who appears in the photos. Please note, it should not be assumed that any individuals depicted have any association with the stories or activities described in the text.

Foreword page 2

Introduction page 3

1 The use and misuse of Disclosures

page 5

2 Disclosure Code of Practice page 8

3 Assessing the relevance of convictions page 11

4 Unfair dismissal page 15

5 Wrongful dismissal page 16

6 Checklist page 17

Appendices

A A Guide to the Rehabilitation of Offenders Act 1974page 18

B Schedule 1 and 2 of the Rehabilitation of Offenders Act 1974 (Exceptions)

Order 1975as amended (abridged

version) page 22

C Code of Practice for registered persons and other recipients of Disclosure information page 27

D Explanatory Guide for registered persons and other recipients of Disclosure information (abridged version) page 31

E Section 36 of the Criminal Justice and Court Services Act 2000page 40

F Employing people with criminal records: model agreement between employer and trade union page 42

About Nacro’s helpline page 44

Foreword

The introduction of Disclosure criminal record checks in March 2002 has undoubtedly served to discourage people who might harm children or vulnerable adults from seeking work with them. However, such benefits aside, Disclosures also discourage other people with criminal records from applying for work with vulnerable people, even though they represent no risk whatsoever. People are discouraged because they are ashamed or embarrassed about their records, even when they are very minor, and because they fear that they will not be treated fairly.

Their fears are justified for many face very real discrimination: people are routinely refused employment or are suspended and dismissed on the basis of wholly irrelevant convictions or cautions. Quite apart from the consequences this has for the individuals

themselves, there are social and economic costs for employers too. Not only do they often end up employing less able, experienced or qualified people, they sometimes find it difficult to fill their vacancies. This is especially the case in health and social care, where it is difficult to recruit because pay is low.

However, it is not only people with convictions or cautions who face

discrimination. As this handbook makes clear, many people who have had unsubstantiated allegations made against them face exclusion from the labour market. Some of these people are undoubtedly innocent.

This handbook draws on the experience of Nacro’s Resettlement

PlusHelpline, which deals with thousands of Disclosure enquiries a year, including many from people who have lost their jobs because of checks. The handbook provides guidance on the law and good practice for those representing affected parties. It also provides a model agreement between trade unions and employers in the hope that employers and trade union officials and stewards will come together to find more effective ways of dealing with the issues that arise from the use of Disclosures.

By working together on a common agenda to reduce the discrimination and social exclusion that arises from the misuse of Disclosures, we can all help to create a healthy, dynamic and diverse workplace that benefits everyone – those with past records, employers, and customers and service users too.

Sarah VealeHead, Equality and Employment Rights Department Trades Union Congress

Although the number of people affected cannot be quantified – there are no reliable statistics or studies into the issue – the introduction of Standard and Enhanced Disclosure checks in 2002 has undoubtedly led to a significant increase in people being unfairly refused employment or suspended and dismissed on the basis of their criminal records. Those who are affected usually suffer in silence. They are often too upset, embarrassed or ashamed to stand up for themselves. They are often unaware of how badly they have been treated, not being familiar with the law or the Disclosure Code of Practice governing their employment. And usually there are no advocates available who feel qualified to intervene on their behalf. A few of those affected will contact Nacro. Upon investigating their cases, Nacro’s helpline staff have found clear evidence of discrimination. They have found that many employers routinely misuse their access to criminal records by:

running checks on posts that are not exempt from the

Rehabilitation of Offenders Act 1974(see appendices A and B) and thus not eligible for Disclosure checks

running Enhanced Disclosure checks on posts that are only eligible for Standard Disclosure checks

ignoring the Disclosure Code of Practice (see appendix C), designed to ensure that ex-offenders are treated fairly refusing to employ people or suspending and dismissing them on the basis of very old, minor or irrelevant convictions or cautions

This handbook draws on the expertise of Nacro’s Resettlement

PlusHelpline, which deals with around 14,500 Disclosure enquiries each year. (See page 44 for more information about the helpline.) The handbook sets out the law and good practice in relation to

Disclosures. It explains what employers should and should not do in relation to ex-offenders, and sets out the grounds on which decisions to refuse employment or suspend and dismiss individuals might be challenged.

It is written for shop stewards, trade union officials, employment lawyers and others helping people subject to Disclosure checks. Individuals who have been refused employment or suspended and/or dismissed should also find this useful. Shop stewards and trade

Introduction

union officials might also find this information useful more generally in helping employers to adopt fair recruitment policies and practices in relation to Disclosure

applications. Towards this end, a model agreement between employer and trade union on employing people with a criminal record is provided (appendix F). The guidance begins by describing the use and misuse of Disclosures (part 1) and the grounds on which decisions might be challenged, based on the Disclosure Code of Practice (parts 2 and 3). It then sets out the law on unfair and wrongful dismissal (parts 4 and 5) as it applies to Disclosures. A checklist is provided (part 6) setting out the key questions that need to be asked when applying this guidance in practice.

Although the guidance has been written with Disclosures in mind, some of the guidance will be applicable in cases where ex-offenders have been refused employment or suspended and dismissed in the absence of a Disclosure check.

There are currently two forms of Disclosure check introduced under Part V of the Police Act 1997: Standard and Enhanced

Disclosures. Both Standard and Enhanced Disclosures show spent and unspent convictions, as well as cautions, reprimands and final warnings, held on the Police National Computer. A third check, the Basic Disclosure, which will only show unspent convictions, may be introduced in England and Wales at some point in the future although there are currently no plans for its introduction.

Defining ‘exceptions’

Standard and Enhanced Disclosure checks should only be carried out for positions exempt from the

Rehabilitation of Offenders Act. Broadly, these positions include:

those whose duties involve regular contact with children and vulnerable adults

certain professions such as health, accountancy, and the law senior managers, controllers, directors, etc in financial services

appointments where national security might be at risk In theory, for a position to be

exempt from the Rehabilitation of Offenders Act, it must be on the Exceptions Order maintained by the Home Office. In practice, many posts which are currently subject to Disclosure checks are not on the Order. Therefore, in running Standard and Enhanced Disclosure checks on such posts, employers are in breach of the Police Act, the

Rehabilitation of Offenders Actand of the Data Protection Act 1998, which requires that data be processed fairly and lawfully. The Exceptions Order defines ‘work with children’ as ‘any work which is (a) work in a regulated position; or (b) work in a further education institution where the normal duties of that work involve regular contact with persons aged under 18’. The meaning of ‘regulated position’ can be found in section 36 of the

Criminal Justice and Court Services Act 2000(see appendix E).

Work with vulnerable adults is defined as ‘any employment or other work which is concerned with the provision of care services to vulnerable adults and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to vulnerable adults in receipt of such services in the course of his normal duties’. A ‘vulnerable adult’ is defined as ‘a

Part

1

The use and misuse of

Part 1The use and misuse of Disclosures

person aged 18 or over who has a condition of the following type: (i) a substantial learning or physical disability; (ii) a physical or mental illness or mental disorder, chronic or otherwise, including an

addiction to alcohol or drugs; or (iii) a significant reduction in physical or mental capacity’. This is a strict definition for a ‘vulnerable adult’. Adults are not vulnerable simply because they are elderly, for instance.

The definitions are particularly important because many employers are running checks on posts that do not fall within those definitions. For example, Nacro has found local authorities that have run checks on people employed as refuse

collectors, car park attendants, dog wardens, quantity surveyors and estate managers on the basis that by their very occupation they may come into contact with vulnerable people, however occasionally. Other posts that have been subject to Disclosure checks include customer service advisers, bank clerks, train drivers, firemen, and bus ticket inspectors.

Too often employers equate jobs where employees go into people’s homes or otherwise have any contact with the public as posts that are exempt from the

Rehabilitation of Offenders Act, simply because ‘the public’ must by definition include children and vulnerable adults. Taken to its logical conclusion, such a definition would include almost

every occupation in the land because most people come into contact with the public at some point during the course of their employment. Such a wide definition is not what legislators intended. The widespread misuse of the Exceptions Order means that this is an issue which will crop up on a regular basis, and one that practitioners challenging

discrimination in Disclosure cases ought to be familiar with.

Differentiating Standard

and Enhanced

There are two principal differences between Standard and Enhanced Disclosures. First, while Standard Disclosures cover positions

involving general work with young people and vulnerable adults, Enhanced Disclosures should, according to sections 115(3) and (4) of the Police Act, be limited to positions involving ‘regular caring for, training, supervising or being in sole charge’ of them.

Second, in addition to showing spent and unspent convictions, as well as cautions, reprimands and final warnings held on the Police National Computer, Enhanced Disclosure certificates also show ‘other relevant information’ from local police records that the police believe is relevant in connection with a particular post.

There are two critical issues here. First, it is clear that Enhanced

Disclosures are being requested routinely for positions that should strictly be covered by Standard Disclosures. When the Criminal Records Bureau (CRB) was first established, it believed that a minority of checks would be at Enhanced level. In 2004, 89% were at Enhanced level and only 11% were at Standard. The discrepancy has occurred not because the CRB got its sums wrong, but because the Disclosure service is being misused.

On its own, the overuse of

Enhanced Disclosures would not be an issue if it were not for the large number of cases where unproven and disputed information has appeared on such Disclosures. The Nacro helpline has dealt with a number of people who have been refused employment or suspended and dismissed on the basis of allegations appearing on Enhanced Disclosures – allegations that they have not been able to challenge effectively when they have complained to the CRB and the police, invariably because the police are unwilling to re-examine their cases. In such situations, it may be worth the individual

pursuing an official complaint against the police, especially if the information is not relevant, or from a long time ago. If there is no satisfactory outcome, it may be possible to pursue the complaint with the Independent Police Complaints Commission or the Information Commissioner’s Office. The widespread misuse of

Enhanced Disclosures means that this is an issue that will crop up occasionally, and one that practitioners challenging

discrimination in Disclosure cases may be able to use as part of a wider case on behalf of an individual. If an employer does carry out an Enhanced Disclosure where they ought to have done a Standard Disclosure, then they are breaching both the first and the third principles of the Data Protection Actrelating to the fair and lawful, adequate, relevant and not excessive processing of data. Complaints about breaches of the

Data Protection Actcan be referred to the Information Commissioner’s Office, which can issue an

enforcement notice to the

employer, requiring them to refrain from certain practices.

The Disclosure Code of Practice was introduced under the same legislation (Part V of the Police Act 1997) that saw the creation of the CRB. The Code is intended to ensure – and to provide assurance to those applying for Standard and Enhanced Disclosures – that the information released will be used fairly. The Code also seeks to ensure that sensitive personal information is handled and stored appropriately and is kept for only as long as necessary.

The Code is routinely breached by employers. Judged by the calls to the Nacro helpline, managers and HR personnel conducting

Disclosure checks tend not to be aware of the existence of the Code and are not making it known to applicants. Failure to comply with the Code, and the accompanying Explanatory Guide (see appendix D), lies behind much of the discrimination that has resulted from the introduction of

Disclosures.

However, both documents provide much useful information on which a case against suspension or dismissal can be made. There are a number of provisions within the Code on which to build a case, but the key provisions for our

purposes concern the fair use of information.

Written policy

Under the Code, in the interests of the proper use of Disclosure information and to reassure applicants, employers shall have a written policy on the recruitment of ex-offenders. This policy should be given to all applicants for positions where a Disclosure will be requested. The issue of a written policy is important. A written policy would, among other things, set out an employer’s likely attitude to

receiving an application from an ex-offender. The policy might state, for instance, that it would consider applications from ex-offenders for all positions, but those convicted of serious violent, sexual or drugs offences would almost certainly be excluded, irrespective of how old the convictions are.

Such a statement might come as a disappointment to anyone with a serious violent, sexual or drugs offence, but at least they would know where they stood. A written policy would provide an indication of the likely success of an

application, and provide a basis for a potential applicant to decide whether to apply or not. The absence of a policy does the

opposite and can leave ex-offenders at a serious disadvantage if they apply for something they have no chance of getting.

Application forms

The Code requires employers to ensure that application forms for positions where Disclosures will be requested in the event of a

successful application contain a statement to such an effect. Again, this is important. In too many instances, ex-offenders have applied for positions without seeing such a statement, have secured those positions and have resigned from their current

positions, only unexpectedly to be handed a Disclosure application form on starting the new job. This practice is unacceptable but

common. Where it occurs, it should form part of your case on behalf of the affected party.

Blanket bans

The Code requires that employers shall include in application forms or accompanying material a statement to the effect that a criminal record will not necessarily be a bar to obtaining a position. Again, many application forms or accompanying material contain no such statement, and in practice some employers will not knowingly employ ex-offenders. In odd

instances, employers have policy statements that actually make it explicit that ex-offenders are barred from any employment with them. Having signed up to the Code when they registered with the CRB, such statements from employers are

unacceptable and evidence of this should be used, where appropriate, in making a case on behalf of affected parties. Where the post in question is not exempt from the

Rehabilitation of Offenders Act, your case will be even stronger, representing as it does a breach of the law.

Discussion

The Code requires that employers shall discuss any matters revealed on a Disclosure certificate with the person seeking the position before withdrawing an offer of employment. Again, this provision is routinely ignored. Employees are often summarily dismissed, with no opportunity to challenge the accuracy of the information on the Disclosure or, if the information is correct, to put it into context. Employers who summarily dismiss an individual in this way are particularly likely to have failed at the outset to have warned the employee that the position was subject to a Disclosure check or indeed to have asked about criminal records at all. Such attitudes are clearly unacceptable and should be challenged.

Making the Code of

Practice available

The Code requires that employers shall make every subject of a Disclosure aware of the existence of the Code, and make a copy

Part 2 Disclosure Code of Practice

available on request. This provision is routinely ignored, which means that applicants are left unaware of their rights and the responsibilities placed on employers. It is a failing on the part of employers that should be used as part of the affected party’s case.

Discrimination

Finally, and importantly, the Code requires that recipients of

Disclosure information shall not discriminate against the subject of Disclosure information on the basis of conviction or other details revealed. They should, according to the Explanatory Guide, consider the following:

whether the conviction or other matter revealed is relevant to the position in question

the seriousness of any offence or other matter revealed the length of time since the offence or other matter revealed whether the applicant has a pattern of offending behaviour or other relevant matters whether the applicant’s circumstances have changed since the offending behaviour or other relevant matters, and the circumstances surrounding the offence and the

explanation(s) offered by the convicted person

This is the critical part of the Code, and the information provided here could go a long way towards supporting any case for

reinstatement. The issues raised are examined in detail in the next section.

Checklist

Code of Practice

Does the employer have a written policy on the recruitment of ex-offenders so that a copy can be given to all applicants for positions where a Disclosure will be requested?

Does the application form for positions where Disclosures will be requested contain a statement that a Disclosure will be requested in the event of a successful application?

Does the application form or accompanying material contain a statement to the effect that a criminal record will not necessarily be a bar to obtaining a position?

Did the employer discuss any matters revealed in Disclosure information with the applicant?

Did the employer make the applicant aware of the existence of the Code of Practice and make a copy available on request?

Relevance

The Explanatory Guide

accompanying the Code requires employers to consider whether ‘the conviction or other matter revealed is relevant to the position in question’. The relevant categories of offences in relation to the protection of children are generally serious violent, sexual and drugs offences. Younger children may be at more risk of sexual abuse; older children from drugs.

Offences relating to dishonesty are not so relevant to positions

working with children. Driving or drinking offences would be

relevant in situations involving the transporting of children and vulnerable adults.

For vulnerable adults, the relevant categories are usually violent and sexual offences. Drugs offences may be less relevant as vulnerable old people, for instance, are not generally susceptible to illegal drug use. However, offences of

dishonesty such as fraud may be relevant in relation to them because old people may have money or valuables. However, even here one should distinguish

between offences. An offence of shoplifting, for instance, might not

be a particular cause for concern, though an offence of theft from an individual very likely would. Beyond these offences, there are a wide variety of offences that have little relevance, such as public order offences, and yet these are often taken into consideration by employers. Although it ought to be obvious to employers, you may need to argue that such offences are not relevant and why.

Employers who take a broad-brush approach to relevance are likely to put vulnerable people in their charge at more risk simply by not focusing on real risk.

Seriousness

The Guide requires employers to consider ‘the seriousness of any offence or other matter revealed’. This is important because all offence categories cover a very wide range of offences that vary in terms of seriousness. A sexual offence, for instance, covers everything from consensual

homosexual acts and young people sleeping with their under-aged girlfriends to indecent assault and rape. Violence covers everything from, commonly, slaps and smacks (assault) to, less commonly,

Part

3

Assessing the relevance of

Part 3Assessing the relevance of convictions

grievous bodily harm and murder. Drug offences cover everything from possession of small amounts of cannabis for personal use to possession of class A drugs with intent to supply. Burglary covers everything from taking goods from shop storerooms to entering the homes of elderly people, leaving them in fear. If the offence sounds more serious on the Disclosure than it was in reality – and often it does – you should explain this as part of the affected party’s case. There will only be a few cases where the offence, though minor in itself, will cause concern. The theft of women’s underwear, for

instance, which falls into the category of property crime, might suggest that the offender has deviant sexual interests. Other examples of behaviour that might cause concern in this regard include threats to others, hate-based and predatory behaviour. The sentence given for a conviction can also indicate how serious the offence was. The offence label may sound serious – actual bodily harm for example – but if the individual was only given a conditional discharge, this would indicate that it was a minor incident. If an individual was given a caution, absolute discharge or bind-over, this would also indicate that the incident was minor. If other

punishments were given, there will

be information to indicate

seriousness. For example, if a fine was given, how much was the fine? If it was probation, community service or a custodial sentence, how long was the order or sentence?

Offence circumstances

The Guide asks employers to consider ‘the circumstances surrounding the offence and the explanation(s) offered by the convicted person’. An explanation of the circumstances surrounding an offence can often provide reassurance. For instance, a person in fear who in defence ends up assaulting someone who is

threatening them is not as culpable as an individual who causes serious injury with intent.

Age of offences

The Guide requires employers to consider ‘the length of time since the offence or other matter

revealed’. Many of the offences on Disclosures are very old, going back to when the person was growing up. They are not relevant in most instances, as the people concerned will have put their past behind them. This is reflected in annual crime statistics, which show that the majority of offenders have short criminal careers of less than a year in length (around 55% of males

and 80% of females). Most

offenders have only been convicted once.

The Government recognises that people can and do put their offending behind them, and this recognition is embodied in the

Rehabilitation of Offenders Act 1974. While the Act does not apply to positions subject to Disclosures, it does provide a guide to the relevance of convictions in terms of their age. Under the Act, most convictions become spent after five years. (For more information about the Act, see appendix A.)

In fact, people who do not offend for two years after being convicted are generally no more likely to offend than those who have never offended. This is reinforced by prison statistics which show that approximately 60% of discharged prisoners are reconvicted within two years, but only 5% more are reconvicted within four years. The report of the Home Office review of the Rehabilitation of Offenders Act shows that the rate of increase in reoffending is at its highest in the two years following conviction in the case of non-custodial sentences, and within two years of release in the case of custodial sentences.1 _{After this} period there is a rapid falling off in conviction rates. This is an

important fact that you should ask employers to take into account

when making a case on behalf of an injured party.

Pattern of offending

The Guide also asks employers to consider ‘whether the applicant has a pattern of offending behaviour or other relevant matters’. This point follows on from the last. People who have a pattern of offending right up to the present date have clearly not put their past behind them. Those people with gambling, drink or drugs-related convictions in particular may remain a risk unless there is evidence of a clear break in the pattern of their offending. Nevertheless, most people, including repeat offenders, put their offending behind them at some stage, often as a result of changed circumstances, and

become law-abiding citizens. There will often be clear evidence of this on which you can make a case.

Changed circumstances

The Guide asks employers to consider ‘whether the applicant’s circumstances have changed since the offending behaviour or other relevant matters’. This is commonly the case. For instance, those

convicted when young, perhaps as juveniles, often do not reoffend once they have family or mortgage responsibilities because they have too much to lose by getting into trouble.

Part 3Assessing the relevance of convictions

Reference

1 Home Office (2002), Breaking the Circle: A report of the review of the Rehabilitation of Offenders Act, Home Office: London

Checklist

Assessing

the relevance of

convictions

Is the conviction or other matter revealed in the Disclosure relevant to the position in question?

How serious was the offence or other matter revealed in the Disclosure?

Were there mitigating

circumstances surrounding the offence and what explanations for it are offered by the applicant?

How long is it since the offence or other matter revealed in the Disclosure? Does the applicant have a pattern of offending behaviour which suggests that they are a continuing risk?

Have the applicant’s

circumstances changed since their offending or other matter revealed in the Disclosure?

Most people dismissed from their jobs following a Disclosure check will not be able to claim unfair dismissal because they will not have been in employment long enough. In order to claim unfair dismissal, people need to have been continuously employed for a year or more.

It is automatically unfair to dismiss someone for failing to disclose a spent conviction where a position is not excepted from the

Rehabilitation of Offenders Act, but the one year continuous

employment rule must apply in order to make a claim.

Once it has been shown that the applicant is qualified to make a claim that an unfair dismissal has taken place, and that the employer has put forward a potentially fair reason for the dismissal, it is necessary to consider the fairness of the dismissal. The employer must use a fair procedure in deciding to dismiss the employee.

An employment tribunal would consider, among other things: whether the employee was given a fair hearing; the evidence used at the hearing; and the employee’s work record – overall performance, work and behaviour. Often in Disclosure cases, employees are not given a fair hearing in that employers do not accept full responsibility for their own flawed recruitment procedures or fully recognise the contribution the employee has made in the workplace.

Employees who have been dismissed may request a written statement of reasons for the dismissal, which the employer must provide within 14 days. Public funding (legal aid) is only available at Employment Appeal Tribunal stage, not at the original employment tribunal. There may be other ways of finding funding at the tribunal stage, notably ‘no win no fee’ solicitor arrangements.

Employees who are dismissed following a Disclosure check may have a stronger claim for wrongful dismissal, given that this is not subject to the one-year rule. A wrongful dismissal is an action for damages to compensate former employees for losses suffered for the wrongful termination of the employment contract.

Wrongful dismissal is based on contract law, and is therefore dependent upon the employer breaking the employee’s contract of employment. It usually relates to whether the correct contractual notice period has been given, and whether the reason for the

dismissal is relevant. An employee will be wrongfully dismissed if they are dismissed with little or no notice. If there is no contract or the contract does not specify notice periods, then the statutory

minimum notice periods apply. The statutory minimum notice period for someone continuously

employed for between one month and two years is one week. Two weeks’ notice must be given to someone employed for two years, and one additional week for each further year of complete service, up to a maximum of 12 weeks. Compensation for wrongful dismissal is limited. Damages will normally only amount to money that the employee would have been entitled to had the contract been lawfully terminated, ie the contractual or the statutory minimum notice period. Compensation for damage to reputation may also be recoverable in limited circumstances.

An employee can bring a claim for both unfair and wrongful

dismissal, but any money received under one claim will cancel out the same amount received under the other claim. This is to stop the employee receiving double compensation.

These are some of the key questions you might need to ask the affected party when deciding whether they have a case or not.

Did you disclose your

convictions when you applied for the job?

If not, why not?

– Is the job exempt from the

Rehabilitation of Offenders Act?

– Were you asked to disclose your convictions?

– Were you asked to disclose unspent convictions? If the employer carried out a Disclosure check, did the employer follow the Disclosure Code of Practice?

Did the employer have a written policy on the recruitment of ex-offenders, and did they give it to you so that you knew where you stood?

Did the employer have a statement on the application form stating that a Disclosure will be requested, so that you knew where you stood? Did the application form or accompanying material have a statement to the effect that a criminal record will not

necessarily be a bar to employment?

When the employer received the Disclosure certificate, did they discuss the convictions with you before dismissing you?

How serious is the offence or other matter revealed in the Disclosure?

How long is it since the offence or other matter revealed in the Disclosure?

Do you have a history of offending behaviour which suggests that you might be a continuing risk?

Have your circumstances changed since the offending or other matter revealed in the Disclosure?

Were there mitigating

circumstances surrounding the offence?

Is the conviction or other matter revealed in the Disclosure relevant to the position in question?

How long had you been

employed before your dismissal? Has the employer complied with their recruitment and

disciplinary procedure, assuming they have one?

Sentence1 _{Rehabilitation period Rehabilitation period} People aged under

18 when convicted

People aged 18 or over when convicted Prison sentences2_{of 6 months or less 3.5 years 7 years}

Prison sentences2_{of more than 6 months to}

2.5 years

5 years 10 years

Borstal (abolished in 1983) 7 years 7 years Detention centres (abolished in 1988) 3 years 3 years Fines3 _{and community orders; compensation,}

probation,4_{community service,}5_combination,6

action plan, curfew,7_{drug treatment and}

testing,8_{and reparation orders}

2.5 years 5 years

Absolute discharge 6 months 6 months

The Rehabilitation of Offenders Act 1974enables criminal convictions to become ‘spent’ or ignored after a ‘rehabilitation period’ (see below). After this period, with certain exceptions (see appendix B), an ex-offender is not normally obliged to mention their conviction when applying for a job, obtaining insurance or when involved in criminal or civil proceedings. Strictly, the Act is not relevant for the purposes of this guide, given that Standard and Enhanced

Disclosures should only cover posts that are excepted from the Act. However, given that people are being refused employment or suspended and dismissed on the basis of jobs not excepted from the Act, the following information is relevant in their defence.

Rehabilitation periods

The length of the rehabilitation period depends on the sentence given – not the offence committed. For a custodial sentence, the rehabilitation period is decided by the original sentence, not the time served. Custodial sentences of more than two-and-a-half years can never become spent. The Act is more likely to help people with few and/or minor convictions because further convictions usually extend rehabilitation periods. People with many convictions, especially serious convictions, may not benefit from the Act unless the convictions are very old.

The following sentences become spent after fixed periods from the date of conviction:

Appendix

A

A guide to the

Sentence Rehabilitation period Rehabilitation period People aged 12-14

when convicted

People aged 15-17 when convicted Detention and training order of 6 months

or less

1 year after the order expires

3.5 years

Detention and training order of more than 6 months

1 year after the order expires

5 years

Sentence Rehabilitation period

Probation,9_{supervision, care order,}10_conditional

discharge and bind-over

1 year or until the order expires (whichever is longer)

Secure training (abolished in 2000) and attendance centre order

1 year after the order expires

Hospital order (with or without a restriction order)

5 years or 2 years after the order expires (whichever is longer)

Referral order Once the order expires

1 The old deferred sentence was not a sentence that attracted a rehabilitation period. Rather, the rehabilitation period will be the one applicable to the sentence that is finally imposed. Cautions, reprimands and final warnings are also not sentences with rehabilitation periods. The Government intends at some point to include them within the Act and give them a rehabilitation period of nil, which means that they will become spent instantly. In the meantime, those people with only a caution on their criminal record can answer ‘no’ if asked whether they have a criminal record, because this is usually understood to mean convictions.

2 Including suspended sentences, youth custody (abolished in 1988) and detention in a young offender institution (abolished for those under 18 years old in 2000 and for those aged 18-20 in 2001). 3 Even if subsequently imprisoned for fine default.

4 For people convicted on or after 3 February 1995. Probation orders were replaced by community

rehabilitation orders which were, in turn, replaced by generic community orders from April 2005. Community rehabilitation orders are still available for 16-17 year olds.

5 Community service orders then changed to community punishment orders, now replaced by community orders. Community service orders are still available for 16-17 year olds.

6 Combination orders then changed to community punishment and rehabilitation orders, now replaced by community orders. Combination orders are still available for 16-17 year olds.

7 From April 2005, part of the community order and no longer available for people aged 18 or over. Still available for 16-17 year olds.

8 From April 2005, part of the community order and no longer available for people aged 18 or over. Still available for 16-17 year olds.

9 For people convicted before 3 February 1995.

10 Care orders in criminal proceedings were abolished by the Children Act 1989and effectively replaced by a supervision order with residence requirement.

The Crime and Disorder Act 1998introduced a new custodial sentence for young people with different rehabilitation periods:

Appendix AA guide to the Rehabilitation of Offenders Act 1974

Motoring offences

The rehabilitation period for penalty points following an endorsement is five years. The period for a disqualification is the length of the disqualification. If a person is disqualified at the same time as receiving another penalty, such as a fine, the longer

rehabilitation period applies. For example, if a motorist is banned from driving for seven years and fined – which takes five years to become spent – the rehabilitation period would be seven years, not five years.

An endorsement cannot affect the rehabilitation period of a motoring conviction. For example, if a motorist is fined for drink driving and has their licence endorsed, the rehabilitation period would be five years (the length applying to the fine) rather than 11 years (the length of time under the Road Transport Actbefore a driver convicted of drink-driving is entitled to a clean driving licence).

Multiple convictions

The Act is complicated in cases where people have several convictions because of the way many subsequent convictions, but not all, extend the rehabilitation periods of earlier convictions. If a rehabilitation period is still running and the offender commits a ‘summary’ offence, a minor offence that can only be tried in a

magistrates’ court, the minor offence will not affect the

rehabilitation period for the other offence; each offence will expire separately. For example, if someone received a two-year probation order, then one year later was fined for a minor offence, the probation order would become spent before the fine. Therefore once the probation order is spent, only the fine would need to be disclosed until it became spent. Most public order and motoring offences, but not drink driving, are summary offences that can only be tried in a magistrates’ court.

If the further offence is a serious one that could be tried in the crown court, then neither

conviction (even if the first one is for a minor offence) will become spent until both rehabilitation periods are over. For example, if someone received a two-year probation order, then one year later was fined for a serious offence, both convictions would have to be disclosed until the fine became spent. Offences like theft, and criminal damage of £200 or more, are regarded as serious offences that can be tried in the crown court.

If the further conviction leads to a prison sentence of more than two-and-a-half years, neither conviction will ever become spent. If however the first conviction leads to a prison sentence of more than two-and-a-half years, later convictions with fixed rehabilitation periods

will become spent separately. For example, if someone was given a three-year sentence and later received a fine, the conviction for the prison sentence will always have to be disclosed, but the fine would only have to be disclosed for five years.

Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later.

Concurrent and

consecutive sentences

If an offender receives two or more prison sentences in the course of the same proceedings, the rehabilitation period will depend on whether they are to run

concurrently or consecutively. For example, two six-month terms ordered to run consecutively are treated as a single term of 12 months, giving a rehabilitation period of 10 years. But two six-month sentences ordered to take effect concurrently are treated as one term of six months, giving a rehabilitation period of seven years. Prison sentences ordered to take effect consecutively to

sentences already being served are not affected by this rule.

Benefits of the Act

Applicants with a criminal record who are asked on an application form or at an interview whether they have any previous convictions can answer ‘no’ if the convictions

are spent and the job applied for is not ‘excepted’ (see Exceptions to the Act, appendix B) from the Act. Under the Act, a spent conviction shall not be proper grounds for not employing – or for sacking –

someone. If, however, job

applicants do not disclose unspent convictions if asked to do so, they may be found out, dismissed on the grounds of having deceived the employer – and possibly

prosecuted.

The Act does not provide any means of enforcing a person’s right not to be refused employment (or entry into a profession) on the grounds of a spent conviction. However, if an employee can prove that they have been dismissed for a spent conviction and they have been in employment for a year or more, they may be able to claim unfair dismissal under employment legislation.

The Act makes it an offence for anyone with access to criminal records to disclose spent

convictions unless authorised to do so. The Act makes it a more serious offence to obtain such information by means of fraud, dishonesty or bribe. The Data Protection Act 1984, as amended, also makes it an offence to procure or supply confidential computer data. In practice, because someone would be dependent on the police laying charges and the Crown Prosecution Service bringing a prosecution, they are unlikely to be able to take any action.

There are some offices and occupations in which people are expected to declare their

convictions, even if they are spent. Broadly the list of exceptions to the Act cover:

those whose duties involve regular contact with children and vulnerable adults (see below)

certain professions (see below) in areas such as health,

accountancy, and the law senior managers (see below) and directors in banking and financial services

appointments to jobs where national security may be at risk A senior manager in financial services is an individual other than a director: (1) who is employed by a firm or a body corporate within a group of which the firm is a member (2) to whom the governing body of the firm, or a member of the governing body of the firm, has given

responsibility for management and

supervision (3) who, if the individual is employed by the firm, reports directly to the governing body, or a member of the body, or the chief executive, or the head of a significant business unit and (4) who, if the individual is employed by a body corporate within the group, reports directly to a person who is the equivalent of a body or person referred to in 3.

Schedule 1

: Excepted

professions, offices,

employments, work and

occupations

Professions

1 medical practitioner 2 barrister (in England and

Wales), advocate (in Scotland), solicitor

3 chartered accountant, certified accountant

4 dentist, dental hygienist, dental auxiliary

5 veterinary surgeon

Appendix

B

Schedule 1 and 2 of the

Rehabilitation of Offenders Act 1974

(Exceptions) Order 1975

as amended

6 nurse, midwife 7 ophthalmic optician,

dispensing optician 8 pharmaceutical chemist

9 registered teacher (in Scotland) 10 any profession to which the

Health Professions Order 2001

applies and which is undertaken following registration under that Act 11 registered osteopath 12 registered chiropractor 13 chartered psychologist 14 actuary

15 registered foreign lawyer 16 legal executive

17 receiver appointed by the Court of Protection

Offices, employments and work

1 judicial appointments 2 the Director of Public

Prosecutions and any office or employment in the Crown Prosecution Service

3 procurators fiscal and district court prosecutors, and any employment in the office of a procurator fiscal or district court prosecutor or in the Crown Office

4 designated officers for

magistrates’ courts, for justices of the peace or for local

justices’ clerks and their assistants

5 clerks (including depute and assistant clerks) and officers of the High Court of Justiciary, the Court of Session and the district court, sheriff clerks (including sheriff clerks depute) and their clerks and assistants

6 constables, persons appointed as police cadets to undergo training with a view to becoming constables and persons employed for the purposes of, or to assist the constables of, a police force established under any

enactment; naval, military and air force police

7 any employment which is concerned with the administration of, or is

otherwise normally carried out wholly or partly within the precincts of, a prison, remand centre, young offender

institution, and members of boards of visitors [now known as independent monitoring boards] appointed under section 6 of the Prison Act 1952

or of visiting committees appointed under section 7 of the Prisons (Scotland) Act 1952

8 traffic wardens appointed under section 81 of the Road Traffic Regulation Act 1967or section 9 of the Police

(Scotland) Act 1967

9 probation officers appointed under Schedule 3 of the Powers of Criminal Courts Act 1973

Appendix BSchedule 1 and 2 of the Rehabilitation of Offenders Act

10 revoked 11 revoked

12 any employment or other work which is concerned with the provision of care services to vulnerable adults and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to

vulnerable adults in receipt of such services in the course of his normal duties

13 any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties

14 any work which is (a) work in a regulated position; or (b) work in a further education

institution where the normal duties of that work involve regular contact with persons aged under 18

15 any employment in the Royal Society for the Prevention of Cruelty to Animals where the person employed or working, as part of his duties, may carry out the killing of animals 16 any office or employment in

the Serious Fraud Office

17 any office or employment in the National Crime Squad or the National Criminal Intelligence Service

18 any office or employment in Her Majesty’s Customs and Excise

19 any employment which is concerned with the monitoring, for the purposes of child protection, or communications by means of the internet 20 any employment or other work

which is normally carried out in premises approved under section 9 of the Criminal Justice and Court Services Act 2000

21 any employment or other work which is normally carried out in a hospital used only for the provision of high security psychiatric services

Regulated occupations

1 firearms dealer

2 any occupation in respect of which an application to the Gaming Board for Great Britain for a licence, certificate or registration is required by or under any enactment

3 director, controller or manager of an insurer

4 dealer in securities

5 manager or trustee under a unit trust scheme

6 any occupation which is concerned with: (a) the management of a place in respect of which the approval of the Secretary of State is required by section 1 of the

Abortion Act 1967; or (b) in England and Wales, carrying on a nursing home in respect of which registration is required by section 187 of the Public Health Act 1936or section 14 of the Mental Health Act 1959; or (c) in Scotland, carrying on a nursing home in respect of which registration is required under section 1 of the Nursing Homes Registration (Scotland) Act 1938or a private hospital in respect of which registration is required under section 15 of theMental Health (Scotland) Act 1960

7 any occupation which is concerned with carrying on an establishment in respect of which registration is required by section 37 of theNational Assistance Act 1948or section 61 of the Social Work (Scotland) Act 1968

8 any occupation in respect of which the holder, as occupier of premises on which

explosives are kept, is required by any Order in Council made under section 43 of the

Explosives Act 1875to obtain from the police or a court of summary jurisdiction a

certificate as to his fitness to keep the explosives

9 revoked

Interpretation

Care services to vulnerable adults

‘Care services’ means: (1) accommodation and nursing or personal care in a care home (2) personal care or nursing or support for a person to live independently in his own home (3) social care services, or (4) any services provided in an establishment catering for a person with learning

difficulties. ‘Vulnerable adult’ means a person aged 18 or over who has a condition of the following type: (1) a substantial learning or physical disability (2) a physical or mental illness or mental disorder, chronic or otherwise, including an addiction to alcohol or drugs, or (3) a significant reduction in physical or mental capacity. Work with under 18 year olds This is any work which is: (1) work in a regulated position, as defined by s.36 of the Criminal Justice and Court Services Act 2000 [see appendix E] and (2) work in a further education institution where the normal duties of that work involve regular contact with persons aged under 18.

Appendix BSchedule 1 and 2 of the Rehabilitation of Offenders Act

Schedule 2

: Excepted

licences, certificates and

permits

1 firearm certificates and shot gun certificates issued under the Firearms Act 1968, and permits issued under section 7(1), 9(2) or 13(1)(c) of that Act 2 licences issued under section

25 of the Children and Young Persons Act 1933 (which relates to persons under the age of 18 going abroad for the purpose

of performing or being exhibited for profit)

3 certificates issued by the police or a court of summary

jurisdiction under any Order in Council made under section 43 of the Explosives Act 1875as to the fitness of a person to keep explosives for private use 4 taxi driver licences

5 licences granted under section 8 of the Private Security Industry Act 2001

The Code of Practice is intended to ensure that information released in Standard and Enhanced

Disclosures is used fairly – and to provide assurance to applicants that this is the case.

The Code also seeks to ensure that sensitive personal information is handled and stored appropriately and kept for only as long as is necessary. Guidance to employers on other matters will be issued separately.*

The Code of Practice is an

important document that sets out the obligations that must be met by registered persons and other recipients of Standard and

Enhanced Disclosure information.

Introduction

This Code of Practice is published under section 122 of the Police Act 1997(‘the Act’) in connection with the use of information provided to

registered persons (‘Disclosure information’) under Part V of that Act.

Disclosure information is information:

contained in criminal record certificates under section 113 of the Act (which are referred to in this Code as ‘Standard

Disclosures’); or

contained in enhanced criminal record certificates under section 115 of the Act (referred to in this Code as ‘Enhanced Disclosures’); or

provided by the police under section 115(8) of the Act. Except where indicated otherwise, the Code of Practice applies to all recipients of Disclosure

information – that is to say: registered persons;

those countersigning Disclosure applications on behalf of

registered persons; and others receiving such information.

Appendix

C

Code of Practice for

registered persons and other recipients

of Disclosure information

* See CRB Disclosure website www.crbdisclosures.co.uk

Appendix CCode of Practice for registered persons and other recipients of Disclsoure information

Where reference is made to

‘employers’, this should be read as including any person at whose request a registered person has countersigned an application, including:

voluntary organisations and others engaging, or using the services of, volunteers; and regulatory and licensing bodies. Further information in relation to the Code, and other matters relating to registered persons and others having an involvement with Disclosure information, is

contained in an Explanatory Guide.

Obligations of the Code

These are as follows:

1

Fair use of Disclosure

information

Recipients of Disclosure information shall:

observe guidance issued or supported by the Criminal Records Bureau (‘the Bureau’) on the use of Disclosure

information – and, in particular, recipients of Disclosure

information shall not unfairly discriminate against the subject of Disclosure information on the basis of conviction or other details revealed.

In the interests of the proper use of Disclosure information and for the

reassurance of persons who are the subject of Disclosure information, registered persons shall:

have a written policy on the recruitment of ex-offenders, so that a copy can be given to all applicants for positions where a Disclosure will be requested; ensure that a body or individual at whose request applications for Disclosures are

countersigned has such a written policy and, if necessary, provide a model for that body or individual to use.

In order that persons who are, or who may be, the subject of Disclosure information are made aware of the use of such

information, and be reassured Employers shall:

ensure that application forms for positions where Disclosures will be requested contain a statement that a Disclosure will be requested in the event of a successful application, so that applicants are aware of the situation;

include in application forms or accompanying material a statement to the effect that a criminal record will not necessarily be a bar to

obtaining a position, in order to reassure applicants that

Disclosure information will not be used unfairly;

discuss any matters revealed in Disclosure information with the person seeking the position before withdrawing an offer of employment;

make every subject of a Disclosure aware of the existence of this Code of Practice, and make a copy available on request; and in order to assist staff to make appropriate use of Disclosure information in reaching decisions, make available guidance in relation to the employment and fair treatment of ex-offenders and to the

Rehabilitation of Offenders Act 1974.

2

Handling of Disclosure

information

Recipients of Disclosure information:

must ensure that Disclosure information is not passed to persons not authorised to receive it under section 124 of the Act. Under section 124, unauthorised disclosure is an offence;

must ensure that Disclosures and the information they contain are available only to those who need to have access in the course of their duties; must securely store Disclosures

and the information that they contain;

should retain neither Disclosures nor a record of Disclosure information contained within them for longer than is required for the particular purpose. In general, this should be no later than six months after the date on which the recruitment or other

relevant decisions have been taken, or after the date on which any dispute about the accuracy of the Disclosure information has been resolved. This period should be exceeded only in very exceptional

circumstances which justify retention for a longer period. Registered persons shall:

have a written security policy covering the correct handling and safekeeping of Disclosure information; and

ensure that a body or individual at whose request applications for Disclosures are

countersigned has such a

written policy, and, if necessary, provide a model for that body or individual to adopt.

3

Assurance

Registered persons shall: co-operate with requests from

Appendix C Code of Practice for registered persons and other recipients of Disclsoure information

the Bureau to undertake assurance checks as to the proper use and safekeeping of Disclosure information; report to the Bureau any suspected malpractice in relation to this Code of Practice or any suspected offences in relation to the misuse of Disclosures.

4

Umbrella bodies

An Umbrella Body is one that has registered with the Bureau on the basis that it will

countersign applications on behalf of others who are not registered.

Umbrella Bodies must satisfy themselves that those on whose behalf they intend to

countersign applications are

likely to ask exempted

questions under the Exceptions Order to the Rehabilitation of Offenders Act 1974.

Umbrella Bodies must take reasonable steps to ensure that those to whom they pass

Disclosure information observe the Code of Practice.

5

Failure to comply with the

Code of Practice

The Bureau is empowered to refuse to issue a Disclosure if it believes that:

a registered person; or someone on whose behalf a registered person has acted; has failed to comply with the Code of Practice.

The Explanatory Guide supplements the information contained in the Code of Practice (see appendix C).

1 Introduction

1.1 Purpose of this Guide

1.1.1 This guidance supplements the information in the Code of Practice published by the Secretary of State under section 122 of the Police Act 1997(‘the Act’).

1.2 Background and types of certificates (Disclosures)

1.2.1 The Criminal Records Bureau (‘the Bureau’) is an executive agency of the Home Office which exercises the powers and fulfils the

responsibilities of the Secretary of State under Part V of the Act. 1.2.2 The Bureau will issue three types of document:

criminal conviction certificates under section 112 of the Act (referred to in this Guide as Basic Disclosures (BDs)).1

criminal record certificates under section 113 of the Act (referred to in this Guide as Standard Disclosures (SDs)). These will be available in respect of positions and professions within the terms of the Exceptions Order under the Rehabilitation of Offenders Act.

A Standard Disclosure will contain details of any spent and unspent convictions, as well as cautions, reprimands and warnings, recorded by the police centrally. It will also indicate if there are no such matters on record.

If an individual is applying for a position working with children, the Standard Disclosure will also reveal whether the individual is barred from working with children by virtue of his/her inclusion on lists of those considered unsuitable to work with children maintained by the Department for Education and Skills and the Department of Health.

Appendix

D

Explanatory Guide for

registered persons and other recipients

of Disclosure information

(abridged

Appendix DExplanatory Guide for registered persons and other receipients of Disclosure information (abridged version)

A Standard Disclosure will also reveal whether a person is barred from working with vulnerable adults by virtue of his/her inclusion on a list of those considered unsuitable to work with such people to be held by the Department of Health.2

enhanced criminal record certificates under section 115 of the Act (referred to in this Guide as Enhanced Disclosures (EDs)).

Enhanced Disclosures will apply to a subset of those within the terms of the Exceptions Order. They will be available in respect of:

principally those involved in regularly caring for, training, supervising or being in sole charge of those aged under 18, or of vulnerable adults; and

certain other matters, including certain purposes in relation to gaming and lotteries; and adoption and fostering.

An Enhanced Disclosure will contain the same details as a Standard Disclosure. It may also contain non-conviction information from local police records which a chief police officer thinks may be relevant in connection with the matter in question.

1.3 Good recruitment practice

1.3.1 The Bureau is committed to encouraging the spread of best practice in recruitment to ensure the best possible use of the information provided by the Bureau and to encourage safer recruitment. The establishment of the Bureau widens the availability of criminal record information. It is crucially important that people who have been convicted are treated fairly and are given every opportunity to establish their suitability for positions.

1.3.2 The existence of a comprehensive Disclosure service should not be regarded as a substitute for any of the full range of existing pre-appointment checks, including taking up references and enquiring into the person’s previous employment history. Disclosures should be seen as complementary to existing recruitment practice and should only be sought after a candidate has been provided with a provisional offer of employment or a voluntary position.

2 General principles and registration

2.1 Eligibility

2.1.1 Disclosures are designed to help employers make safer recruitment decisions. They are also available to persons exercising regulatory and licensing functions.

2.1.2 All recipients of Disclosure information ie, registered persons,

those countersigning Disclosure applications on behalf of registered persons, and

others receiving such information must adhere to the Code of Practice.

2.1.3 If the Bureau believes that a registered person has: failed to comply with the Code of Practice, or

countersigned an application at the request of a body or individual that has failed to comply with the Code of Practice the Bureau may refuse to issue a Disclosure.

2.2 Sensitivity of Disclosure information

2.2.1 All information disclosed by the Bureau is sensitive personal information. The Bureau publishes guidance covering the full range of its services. This includes guidance to employers on how to make best use of the information contained within Disclosures to make sensible and fair decisions about the suitability of individuals for positions.

2.2.2 All recipients of Disclosure information must treat such information with care and responsibility. Such information may be particularly sensitive, and the arrangements made must fully recognise this. 2.4 Registration

2.4.2.2 Applicants must satisfy the Bureau that they are likely to ask exempted questions, under the terms of the Rehabilitation of Offenders Act, or that they are a body that is likely to countersign applications for Disclosures at the request of bodies or individuals asking exempted questions (see section 2.4.3).

2.4.3 Umbrella bodies

2.4.3.1 Even if a body is not likely to ask exempted questions, it may apply for registration if it satisfies the Bureau that it is likely to

countersign Disclosure applications at the request of bodies or individuals asking exempted questions. Such an organisation is known as an Umbrella Body.

2.4.3.2 In turn, the Umbrella Body must satisfy itself that those on whose behalf it wishes to countersign applications are likely to ask exempted questions.

Appendix DExplanatory Guide for registered persons and other receipients of Disclosure information (abridged version)

2.4.3.3 Umbrella Bodies should also satisfy themselves that the relevant terms of the Code of Practice are observed by those on whose behalf they countersign applications. However, ultimate responsibility for compliance with those parts of the Code which relate to all recipients of Disclosure information rests with each recipient.

3 Countersigning applications for Disclosures

3.3 Policy in relation to persons with a criminal record

3.3.1 It is essential that those who have been convicted are treated fairly. All employers should have available a written policy on the

recruitment of people who have been convicted in the past. Individuals and organisations making use of an Umbrella Body should be able to obtain a model from the Umbrella Body. A sample policy will be provided by the Bureau on request.

3.4 Information for applicants

3.4.1 Each applicant for a position should be given a copy of this policy at the commencement of the recruitment process.

3.4.2 Wherever appropriate, a statement expressing a willingness to consider persons with a criminal record on their merits should be included on application forms. Application forms, or other

recruitment documentation, should also carry a statement that the provisionally selected applicant for a position will be asked to apply for a Disclosure.

3.4.3 Applicants should be made aware of the Code of Practice and the employer’s commitment to it. Umbrella Bodies should satisfy

themselves that all employers on whose behalf they act are aware of the Code, and should take reasonable steps to ensure that they comply with it.

3.5 Guidance to staff

3.5.1 Staff involved in employment and other decisions using Disclosure information should receive guidance in the areas of the employment of persons who have been convicted in the past, the Rehabilitation of Offenders Act and the Exceptions Order thereunder, the Police Act 1997 and the Code of Practice.

4 Consideration of checks

4.1 Factors to take into account

4.1.1 Employers should take into account a number of factors before reaching a recruitment decision. Other guidance issued by the Bureau will help employers to consider how best to use the