European employment discrimination based on criminal record II – discretionary bars

To the American eye, Europe seems unconcerned about  criminal record-based employment discrimination (CBED). (The U.K. is an exception.) Is this because European employers do european_stamp-woman_riding_beastnot discriminate against job applicants or employees with criminal convictions?  If so, is that because European countries prohibit CBED, prevent employers from obtaining individual criminal history information, and/or provide potent remedies to people with convictions who are discriminated against?  Or, perhaps European employers believe that CBED is immoral or irrational because past criminal convictions have no value in predicting future conduct on or off the job?  Still another hypothesis is that, while Europeans believe that prior convictions are predictive of future dishonesty, dangerousness and unreliability, they also believe that CBED should be prohibited  in order to further more important goals like rehabilitation and social harmony.  Finally, perhaps employers in Europe do discriminate, but such discrimination has not been revealed through empirical research.  While there is no body of research on European CBED comparable to the employer surveys and field studies done in the U.S., there are some generalizations that can be made.

While European countries do not prohibit CBED, European privacy laws sharply restrict access to and dissemination of conviction (and, of course, arrest) information. Thus, a person’s conviction history is not an open book in Europe as it is in the U.S.  However, European countries permit private employers to require a job applicant to submit a criminal record certificate (CRC), and European nationals have a right to obtain a copy of their own criminal conviction record, either directly from their home country’s national criminal register or indirectly via the police who can access the NCR on the record-subject’s behalf. This means that private employers can accomplish indirectly what privacy laws prohibit.  An employer can also ask a job applicant about prior convictions, although the applicant’s denial  cannot be confirmed.

There are no studies of how frequently private employers ask applicants to provide a copy of their own record, or how much weight they give to convictions of different types. Practically all Spanish academics and criminal justice professionals with whom we have discussed the matter believe that private employers rarely require a CRC.  In an attempt to verify this belief empirically, we examined data from the Office of the National Criminal Register and surveyed employers, workers and probationers.

In 2010 government agencies in Spain made 1.3 million requests to the NCR for individual conviction information, while private citizens made 176.000 requests for copies of their own conviction record (CRC).  The government agencies’ CRC requests are due to laws that  makes a clean criminal record a prerequisite to holding certain government jobs. Private citizens file requests when an employer requires submission of a CRC  with the job application.

While we were not able to conduct  the kind of full-scale employer survey that has been done in the U.S. and elsewhere, we did administer to 16 trade union workers a questionnaire asking if an employer had ever requested them or somebody they knew to submit a CRC.  Eight of the respondents  answered negatively.  Four who answered affirmatively had been asked to provide a criminal certificate for jobs with state and local police, private security and a fire department, no surprise since the law disqualifies certain convicted persons from serving in those positions. However, the four other affirmative responders said that a criminal certificate had been requested for employment in office cleaning, domestic service, gardening and social services.

In another empirical foray, we surveyed 49 male probationers in Barcelona. Of this sample, only 10.7% reported ever having been asked by employers to submit a CRC. Most of those who were asked had applied for jobs covered by employment disqualifications based on criminal record, e.g. private security and commercial drivers. Obviously, such limited survey data cannot be relied on, but they do cast some doubt on the widely-held belief that Spanish employers rarely consider job applicants’ past convictions.

Recently (June, 2014), some important data have surfaced in Sweden, where a government-appointed commission just completed an investigation into CBED.  The Commission found that employer-stimulated citizen requests for CRCs increased from 40,000 in 2003 to 220,000 in 2013. The Swedish National Police Agency, which manages that country’s NCR, estimates that 85-90%  of these requests emanated from employer hiring requirements.  Controlling for national population, this amounts to many times more employer-stimulated records requests than in Spain given the former’s far smaller population. (The Swedish Commission has recommended remedial legislation which we will report on in a future post.) Thus, we should not  dismiss the possibility that, at least in some European countries,  more employers require job applicants to provide information about prior convictions than has been commonly thought.

 

Table 1: Number of petitions to National Conviction Register for employment purposes in United Kingdom, Sweden, Netherlands, and Spain.

Year UK[1] Sweden[2] Netherlands[3] Spain[4]
1999 95,000
2000
2001 153,247
2002 1,183,877 127,520
2003 2,155,401 122,424
2004 2,577,459 136,297
2005 2,736,652 157,701 254,338
2006 3,182,902 200,767 279,700
2007 3,382,715 208,111 384,724
2008 3,810,614 257,518 474,751
2009 4,269,924 278,788 459,633
2010 4,219,319 345,551 1,500,000
2011 4,020,446 1,667,731

[1] This table has been produced by Marti Rovira. Data refers to the petitions of the Criminal Record Bureau for England and Wales. Criminal Records Bureau only dealt with petitions for recruitment decisions. Source: Home Office (2012) CRB 21567 – CRB applications. (Freedom of Information Request). London: Home Office. Available at: http://205.139.89.196/publications/agencies-public-bodies/CRB/Freedom-of-information/all-foi-responses/21567-crb-apps?view=Standard&pubID=1011205 [Accessed 3 March 2013].

[2] Data by Christel Backman (PhD thesis) provides data for the Number of civil requests for criminal records to the Swedish National Criminal Records Registry. On 2010 there were 161,349 subject requests (46.7%), 150,340 on Childcare workers and teachers (43.5%) 8729 for insurance intermediaries (2.5%) and 25,133 for special approved homes for youth care (7.3%). On the other hand, Data from SOU 2014:48 [Swedish Government Official Reports], Registerutdrag i arbetslivet [Extracts of Criminal Records in the labour market] establish that The Swedish National Police Agency received in 2013 more than 220 000 subject requests from individuals asking for an extract of their Criminal Records Registry.

[3] Data of 1999 come from Bushway, S. D., Nieuwbeerta, P., & Blokland, A. (2011). The predictive value of criminal background checks: do age and criminal history affect time to redemption?. Criminology, 49(1), 27-60. Data from 2005 onwards comes from Boone, M. (2011). Judicial rehabilitation in the Netherlands: Balancing between safety and privacy. European Journal of Probation, 3(1), 63-78. Available at: http://www.ejprob.ro/uploads_ro/723/Judicial_rehabilitation_in_NL.pdf

[4] Data from 2010 appears in Larrauri and Jacobs (2013). The data show the number of petitions to the National Criminal Register of Spain. On 2010, 9.20% requests were related with employment in the police, 2.90% for employment in the army, and 63.90% for obtaining the residence and work permit.  The rest were given for firearms permits (4.40%), which might also affect employment in private security, to obtain nationality (7.90%) or for individual requests (11,7%).

 


This posting draws on Larrauri & Jacobs, “A Spanish Window on European Law & Policy on Employment Discrimination Based on Criminal Record,” in EUROPEAN ENOLOGY, eds, Tom Daems, Dirk van Zyl Smit and Sonja Snacken.  Available on SSRN

Elena Larrauri

Elena Larrauri is a professor of Criminal Law and Criminology at Universitat Pompeu Fabra (Barcelona) and past president of the European Society of Criminology.

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