Recent news of high-profile resignations following the discovery of past convictions has highlighted the challenges employers face when managing criminal record disclosures. While these types of situations often make headlines, they also serve as a reminder of the importance of understanding the legal framework, applying fair policies, and carefully considering each case on its merits.

This article explores the Rehabilitation of Offenders Act 1974 (ROA) and provides practical guidance for employers, ensuring compliance while fostering fairness and consistency.

The Rehabilitation of Offenders Act 1974: A Brief Overview

The Rehabilitation of Offenders Act 1974 (ROA) was introduced to help individuals with criminal records reintegrate into society by protecting them from lifelong discrimination. It allows certain convictions to become spent after a specified rehabilitation period, meaning they no longer need to be disclosed to employers in most cases.

  • Spent Convictions: Once a conviction is spent, it is legally irrelevant for employment purposes, except for certain exempt roles.
  • Unspent Convictions: These must still be disclosed if the employer asks directly during recruitment or as part of a lawful criminal record check.

Convictions become spent after a period, this is known as the rehabilitation period. For sentences of over 4 years or sentences classed as public protection sentences there is no rehabilitation period, and the conviction is never spent. The rehabilitation period changes based on age and the length of the conviction. Regardless, all convictions remain of the Police National Computer (PNC) forever. 

Certain roles are exempt from the ROA under the Exceptions Order 1975, meaning all convictions (spent and unspent) must be disclosed. These typically include positions involving children, vulnerable adults, or high levels of trust, such as teaching, healthcare, and law enforcement.

The ROA aims to strike a balance between rehabilitation and public safety, protecting individuals from unnecessary discrimination while enabling employers to make informed hiring decisions.

Key Considerations for Employers

1. Be Clear and Transparent

A clear, well-communicated approach to criminal record disclosures helps both employers and candidates navigate the process with confidence:

  • During Recruitment: Clearly state whether a role requires disclosure of criminal records and the level of check that will be carried out. This is especially important for roles requiring DBS checks (Standard or Enhanced).
  • On Application Forms: Avoid unnecessary or overly broad questions. For example, ask about ‘unspent convictions relevant to this role’ rather than requesting details of all convictions.

Being upfront about your organisation’s expectations reduces ambiguity and ensures candidates can provide accurate information.

2. Know When Disclosure Is Lawful

Employers must understand when it is appropriate to ask about convictions and what type of information they are entitled to:

  • Non-Exempt Roles: You can only ask about unspent convictions. Spent convictions are legally irrelevant.
  • Exempt Roles: For roles exempt under the ROA, you can request details of all convictions and cautions, provided the role justifies it (e.g., safeguarding or security-sensitive positions).

Employers conducting DBS checks should ensure the level of check corresponds to the role’s requirements.

3. Evaluate Each Disclosure on Its Merits

When a criminal record disclosure is made, employers should take a measured approach:

  • Relevance to the Role: Consider whether the conviction directly impacts the role. For example, a financial fraud conviction might be highly relevant to a position in accountancy but less so in a manual labour role.
  • Nature and Severity: Differentiate between minor, unrelated offences and more serious convictions that could impact trust or performance.
  • Time Elapsed: Older convictions may hold less weight, particularly if there is evidence of rehabilitation and positive behaviour since the offence.

Avoid making snap judgements. A fair and consistent risk assessment process demonstrates professionalism and ensures compliance with relevant laws.

4. Prepare for Non-Disclosure Discoveries

If an employee or candidate fails to disclose a conviction when required, the appropriate response depends on whether the conviction was spent or unspent:

  • Unspent Conviction: If the individual knowingly withheld relevant information and this breaches trust or company policy, it could warrant disciplinary action or dismissal.
  • Spent Conviction: Acting on a spent conviction in a non-exempt role may breach the ROA, leaving the employer open to legal challenges.

Between 2011 and 2015, there were 1,314,273 standard DBS checks and 19,188,161 enhanced DBS checks issued, with, on average, 10.24% of those checks showing criminal history. Employers should always investigate the reasons for non-disclosure and assess its impact on the individual’s suitability for the role before taking any action

5. Maintain Confidentiality and Data Protection

Criminal record data is considered sensitive under GDPR, and employers must handle it appropriately:

  • Obtain Consent: Before conducting a DBS check, ensure the individual understands why it is necessary and consents to the process.
  • Store Securely: Keep disclosure information confidential and limit access to those involved in the decision-making process.
  • Use Responsibly: Use the information solely to assess suitability for the role and not for any unrelated purposes.

Non-compliance with GDPR can result in significant legal and reputational consequences.

6. Create and Apply Fair Policies

A robust, transparent policy on managing criminal record disclosures is essential. It should include:

  • Clarity on Disclosure Requirements: Specify when and why candidates will be asked to disclose convictions.
  • Commitment to Fairness: Emphasise that decisions will be made on a case-by-case basis, considering relevance, severity, and evidence of rehabilitation.
  • Consistency in Approach: Ensure that similar cases are treated equitably to avoid claims of bias or discrimination.

Publishing this policy demonstrates a commitment to fairness and provides a clear framework for managing disclosures.

Employers must balance legal compliance with ethical considerations and operational needs:

  • Legal Compliance: Ensure that practices align with the ROA and GDPR, particularly in roles where exemptions apply.
  • Ethical Responsibility: Recognise the value of rehabilitation and avoid unnecessary barriers for candidates with spent convictions.
  • Operational Impact: Assess how a disclosure affects the specific requirements of the role, always ensuring decisions are proportionate and justifiable.

FAQ: Common Questions on Criminal Record Disclosures

Q: When should a candidate/employee disclose a conviction to their employer?

A: It’s up to them, they should disclose unspent convictions if asked during recruitment or if the role requires disclosure under the ROA.

Q: What can Employers ask about a criminal record?

A: Employers can only ask about unspent convictions unless the role is exempt from the ROA.

Q: What happens if an employee voluntarily discloses a conviction?

A: A good employer should assess whether the conviction affects their ability to perform the role and engage in an open discussion with them.

Q: Can I dismiss an employee for not disclosing a conviction?

A: Yes, if the candidate/employee fails to disclose an unspent conviction when asked and it’s later discovered, this could be grounds for dismissal.

Q: What protections do employees have when disclosing a conviction?

A: Employers must follow GDPR and the Equality Act 2010, ensuring fair treatment and data confidentiality.

Thank you to Kate Goodman, Farringford Legal’s Director of HR Services for this article. Kate heads up our outsourced HR services providing exceptional practical support for SMEs covering areas such as compliance with employment laws, employee relations, and performance management, as well as providing access to expert knowledge, and reducing overhead costs.