An employer's right to know? - applications invited

Published: 11 January 2021 at 16:55

We're looking for a PhD student to research the extent to which the disclosure of criminal records and 'non-conviction' data influences employers' decisions to hire or to dismiss employees.

This project is designed to address contemporary issues around criminal records disclosure and the disclosure of ‘non-conviction’ data to employers or prospective employers. The aim of the project is to determine to what extent the disclosure of such information influences decisions to hire or to dismiss employees by employers.

The main research question is: how much about an employee or job applicant’s criminal history should an employer be entitled to know when making hiring or firing decisions?

The current system of disclosure of criminal records information held by the state about an individual, at present administered by the Disclosure and Barring Service (DBS), operates to the disadvantage of individuals in two main ways. Records of convictions, even if accurate, may be historic and relatively trivial. Some records contain non-conviction information which reflects badly on the individual’s character but may not necessarily be true and certainly remain unproven in a court of law. In either case, disclosure of these records to an existing or prospective employer has been judicially described as ‘close to a killer blow’ for the individual’s job prospects.

It has never been recognised that an employer has a ‘right to know’ anything about a job applicant’s or employee’s previous criminal history. The current law prevents a prospective employer from asking questions about convictions or cautions which are ‘spent’. There are wide-ranging exceptions, under the general notion of ‘protection of the public’. Disclosure of non-conviction data is a discretionary decision of the police.

Previous studies have reported job offers being withdrawn or employees being dismissed as a result of adverse disclosure (Fletcher et al, 2001; Appleton, 2014) but, so far, such studies have tended to focus on the liability of the state for infringement of individual rights by disclosure (Grace, 2014; Marshall & Thomas, 2015). No studies have yet been undertaken into liability employers may incur for unauthorised disclosures or the misuse of disclosed data.

Methods

The project would be an empirically based study gathering survey/interview data from employers on their use of criminal records disclosures and data from third party sources, and how such information is processed when making decisions to hire employees and/or dismiss employees whose criminal records history is ‘sub-optimal’.

The primary data gathering exercise would utilise a convenience sample of employers in the public sector, as such employers are more likely to have more readily accessible information on recruitment policies and practices, and are more likely to have customers or clients who may be considered as ‘vulnerable’ and in need of ‘protection’.

The participants in the research will be senior Human Resource managers or others responsible for recruitment of new employees. The number of surveys and/or interviews to be carried will be a matter for discussion between the researcher and the supervisory team.

The purpose of the surveys/interviews will be to gather qualitative data from a range of employers in the public sector on their practices in seeking criminal records conviction and non-conviction information from the DBS, how employers process the data received from the DBS, and how these data shape and influence their decision-making on recruitment of those with adverse entries.

The data gathering process will also seeking information on employers' recruitment, rehabilitation and disciplinary policies, and the factors that are taken into account when making a decision on whether to recruit an individual with a historic criminal record or who has been the subject of unproven allegations of a damaging nature.

Once gathered, the data will be subjected to thematic analysis to identify common topics, ideas and patterns of behaviour amongst employers and human resource practitioners.

The outcome of the research project is anticipated to be recommendations for legislative and/or policy change designed to achieve a fairer balance of competing interests in the area of criminal records disclosure in the UK.

Applications from suitably qualified students are invited for this project. Apply online, or contact Tom Serby, Senior Lecturer in Law at tom.serby@aru.ac.uk for more information.