The law recognises that there is an overriding need to protect certain groups of people and this means it is sometimes necessary to give close consideration to someone’s criminal history. It is also natural for an employer to want to protect their business but these needs have to be balanced against the fact that individuals can be rehabilitated and that employment is an important way of enabling convicts to move on with their lives and contribute to society.
Employees with convictions – what does the legislation say?
For these purposes, there are two categories of jobs, those which fall inside the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the Exceptions Order”) and those which do not. There is an extensive list of professions and occupations within the Exceptions Order but broadly speaking they are jobs which involve access to vulnerable people (both children and adults) and certain professions where trust and honesty are of the utmost importance.
The Rehabilitation of Offenders Act 1974 (“the Act”) provides that, subject to certain exceptions, criminal offences will become spent after a specified period and provided there has been no re-offence. That period will vary depending on the conviction but after it, the individual will be considered rehabilitated. Some convictions are never spent and some will automatically bar an individual from working in certain roles.
The Police, Crime, Sentencing and Courts Act 2022 came into force on 28 October 2023 and amended the Act. It largely reduced the period of time before some convictions become spent, in turn reducing the period of time during which an individual must declare the conviction. It also introduced a new rehabilitation period for custodial sentences of over four years, which previously could never be regarded as spent. The reduction does not apply to serious sexual, violent or terrorist offences which never become spent. The new legislation also has no impact on roles which have stricter disclosure rules (see further below on DBS checks). A table setting out the rehabilitation periods can be found here.
What can an employer do?
For some roles, an employer may need to carry out a DBS check. This is only permissible where the job in question falls within the Exceptions Order. There are three levels of DBS check. The most detailed of these, the Enhanced DBS certificate, is generally only available for roles that involve carrying out certain activities for children or vulnerable adults in order to identify if a person is on a barred list due to being unsuitable to work with such people.
The Government has a handy tool to help employers establish which type of DBS check, if any, is right for their business and specific roles within it. The tool can be found here.
An individual can now register to use the online Update Service which effectively ensures that their DBS certificate is kept up to date and, with their consent, an employer can check it online.
Taking spent convictions into account
In principle, if a job falls outside of the Exceptions Order an employer cannot take into consideration spent convictions either when recruiting or during employment.
An employer will normally need to decide on the specific facts of each case how to proceed and must exercise their judgement in deciding whether to recruit the individual or continue their employment.
If the knowledge is obtained at recruitment stage then an employer’s options on how to proceed will depend on the type of conviction which is disclosed.
- If the conviction is spent, the employer may not refuse to employ someone on this basis, unless the position applied for falls within the Exceptions Order. That said the risks associated with refusing to employ someone with a spent conviction are limited as the prohibition on such treatment does not actually provide the individual with any claim or remedy.
- If the conviction is spent but the position falls within the Exceptions Order, then the employer may refuse to employ such a person (and ought to refuse to employ such a person if there is legislation specific to that sector which would make it unlawful for an offer of employment to be made). For example, it is a criminal offence to employ a teacher if that person is barred from working with children.
- If the conviction is not spent, the employer may decide not to employ that individual.
- If an employer discovers that an existing employee has a criminal record then they will need to consider their options carefully, especially if the employee has over two years’ service, as they will be eligible to bring a claim for unfair dismissal. The existence of a spent conviction is unlikely to be a fair reason for dismissal unless the position falls within the Exceptions Order.
- If the person lied about their criminal record (and was not entitled to conceal the offence), the employer may wish to terminate the relationship for breach of trust and confidence. If the employer makes the discovery shortly after the employment has commenced, they are likely to be able to terminate the employee’s contract by giving the correct notice (or payment in lieu). However, if the employee has sufficient qualifying service to bring an unfair dismissal claim, more care is needed. It may be outside the range of reasonable responses for the employer to dismiss for breach of trust and confidence where the employee has otherwise shown themselves to be trustworthy and competent in the role, particularly over a long period.
- If someone is employed and later acquires a criminal record, this may call into question their suitability for the role. However, you should not have a knee-jerk reaction to the commission of the offence; you should consider what bearing, if any, the offence has on the role.
If the employee has less than two years’ service then, regardless of the principles set out above, the risks of dismissal may be rather limited, as the employee will not be able to bring a claim solely on this basis unless they can link it to a “day one” right such as discrimination or whistleblowing. Our article Employment rights – the two year rule, can be found here and provides further information on “day one” rights.
Disclosure of convictions during employment
Broadly speaking there is no implied duty on an employee to disclose their convictions, at the beginning of, or during, employment, unless the employee owes the employer a fiduciary duty or the job is contained within the Exceptions Order.
If the job is contained within the Exceptions Order the employer can ask whether the individual has any spent or unspent convictions provided the question is asked for the purpose of assessing the applicant’s suitability for the occupation, office or profession and the individual is informed they are obliged to answer. Failure to answer will be a valid reason to withhold employment or to dismiss, as will a failure to give truthful information.
If neither of the above options applies and an employer wants employees to be obliged to disclose their wrongdoing and/or convictions, they will need an express contractual clause to that effect.
When processing information about an employee’s convictions you should bear in mind your obligations in respect of data protection. This information is regarded as ‘special category data’. It is important that both your practices and policies are up to date and legally compliant. Our specialist Data Protection team can advise further on your obligations and you can find out more about the team – here.
It is important for employers to carry out DBS checks on employees where this is relevant and they are legally permitted (or obliged) to do so. The sanctions for employers deciding not to employ a person with convictions, including those that are spent, can be limited, although not in every case. Employers should also recognise that in certain instances they could be missing out on talented individuals if they refuse to recruit or decide to dismiss solely based on a conviction. It is therefore important, both legally and from a business perspective, that each case is considered on its specific facts.
If you have any further queries regarding convictions please contact our Employment Team we would be happy to help.