Can we ask questions about integrity during the recruitment process?

Q. I'd be grateful for your advice in respect of recruitment process and asking questions in relation to integrity. Below are the types of questions being considered for inclusion in the process and your advice would be much appreciated.

Seamus: Okay.

Scott: So, it's not quite clear from the questions whether these statements will be on the application forms or raised during or after recruitment process, but the first one is to do with rehabilitation of offenders.

Do you have any criminal convictions—this is the statement—do you have any criminal convictions which are not spent under the Rehabilitation of Offenders Act 1974, which applies to GB, or the Rehabilitation of Offenders, Northern Ireland order 1978, which applies in Northern Ireland. Motoring offences should not be included unless you will be driving a company car. And then it says, if yes, please provide details.

So, if somebody put that on their application form or asked somebody during the process, what's your view on that, Seamus?

Seamus: I think the first consideration that comes into my head is the justification for asking the question and making sure that for the job role that's applied, that this is a relevant piece of information that's required. You could imagine that in the likes of the teaching field or something along those lines this would be a very relevant question. Certainly, there may be follow up in terms of making sure there is a vetting procedure carried out. But I'd say to that, provided that it's justified, I don't have difficulty with the question being asked.

I think also it would be that we're looking at whether or not these convictions are spent or not. I suppose we are taking the person's word in relation to the question being posed and they're replying in relation to that. Maybe it's a difficult question for any applicant to reply to because they may not be aware and they may think their previous conviction is spent when in actual fact it isn't. The real true answer that would be whenever you go through your vetting procedures at that point, I suppose with any of these types of integrity questions, you need to be sure that you're not posing the question in a discriminative way or it's going to raise any issues for some indirect discrimination happening. You need to be careful.

I think justification is an important aspect of it. I suppose the timing of whenever the question would be asked as well - is it necessary to have it on the application form or is it maybe more prudent to address no matter if there's a serious offer of employment going to be offered at that stage, then do you invoke the question at that point?

Scott: That might depend, I suppose, on your occupation. There are certain occupations such as education where the convictions never become spent, so there's a point in asking that question. Whether "Do you have any criminal convictions ever?" would be something that you could ask another matter. But there's nothing intrinsically wrong with asking that question there and there's nothing intrinsically wrong with an employee or potential employee not declaring something which has become spent, provided it's in an occupation where they can become spent.

Seamus: Exactly. Yes. The other consideration, I suppose, is just about the request for information and the impact that the GDPR will have upon that. Again, I suppose, it's always looking at the reasons for wanting to process the data and to have all the information and making sure that you're following down the line that it's legitimate and that it serves a purpose.

Scott: And, of course, criminal convictions would be special category data and therefore it's probably better that it's not on the application form or there's some kind of protection around it, only certain people can see it. The information that's on there is pretty personal if you declare it.

Seamus: Absolutely. It's not that everyone goes around telling people about their past convictions, whether spent or not. It's a very personal piece of information. So, I think you just need to give careful thought to that.

Scott: Have you ever been subject to bankruptcy proceedings or court proceedings in the UK or any other country or are there any proceedings pending? If yes, please give details?

Seamus: That's an interesting one because it's one that you wouldn't necessarily come across as much as maybe the previous example there. But I can see it certainly being relevant. Certainly, within our practice as solicitors, there are difficulties there if you've been declared bankrupt. So, if you're going for a job or maybe if you're working in a bank or in a financial arena, that would be an important aspect as well. If you were applying for a role as an administrator or something on those lines and you had a bankruptcy, it would certainly raise concerns as far as your suitability to do the role. Again, for me, it's about the justification, making sure that it's a correct question to ask.

Scott: It might not be appropriate for a bricklayer or a joiner or something like that.

Seamus: Exactly.

Scott: But if you're in financial services or in a company director type thing, that would be more appropriate.

Seamus: Yeah, absolutely.

Q. Are you or have you ever been a director of a company or do you own more than 15% of any corporate body? And again, if yes, give details. 

That would be presumably something on the application form in the application process.

Seamus: Yeah. This is a strange one in the sense that I would imagine this is more a post-offer type question to be asked. I couldn't imagine how this would impede the offer of a role unless there's some sort of tight restrictive covenants contained within the agreement. Maybe a service agreement at high level where you're saying that the person has to devote their whole time and attention to the role and you're really looking around here as to can the person do that? Are they going to be doing the role but have a 15% interest in another company? That's the flavour I would see that at as well.

Certainly as well, I know within certain professions you have to make a declaration about the directorships that you hold and there may be some regulatory bodies that require that information. The other thought I had in terms of the element of a director of a company is that if you were going to be appointed as a director in the company, Companies House sometimes require to know what directorships you hold as well. Again, those, for me, lie on the outskirts of whenever you come to make an offer. I'm not sure how to make an offer in the relevant cases for that question to be asked. There's nothing problematic in asking the question.

Scott: I'm a governor in the Southern Regional College and I have to declare my interest every year at the start of the process to make sure there's no conflict there. It's a perfectly valid thing to ask.

Seamus: Absolutely.

Scott: They finish off by saying the form includes the declaration, "I declare the information given above is true and that any false, incomplete, or misleading information that I give may make me liable, if employed, to dismissal." So, what about that? Where people say, "If I told you any lies, I may get sacked. I accept that."

Seamus: I think there's no huge difficulty with that, other than using the word ‘dismissal’. I would prefer to say maybe ‘disciplinary proceedings’ because you wouldn't want—obviously, with any dismissal, there has to be careful consideration given to any penalty or outcome and you don't want anyone saying, "Well, you've pre-judged already. I'm going to be dismissive because you've written it down here and this is evidence of it."

So, I'd maybe prefer to say along the lines that you may be subject to disciplinary action. That's a trust and confidence issue and it's probably a dismissal on the basis of some other substantial reason and again, you'd have to make sure the dismissal is proportionate and reasonable.

Scott: You're listening to Employment Law at 11:00 with Scott Alexander from Legal-Island and Seamus McGranaghan from O'Reilly Stewart. We've received some questions. We have some via the Legal-Island website and we've also had them on a post-webinar survey that you replied to. So, quite a few of them came through there. I've had a few to my mailbox at scott@legal-island.com. Don't send them in now because my phone is off. I won't be able to see them. Use the chat box. You'll see it on your screen.

If you have any questions on any employment law issues, we'll try and get through them. If we can't, we'll hold them all until next month. I can see you sending in the questions, but I keep them anonymous. So, Seamus never sees them, nobody else hears them, but they're coming to me. So, send them in. The webinar will last 30 to 45 minutes. It depends on how many questions you send in and how many we can get through. But like I say, if we can get through them all today, we shall get through them all eventually.