This aim of this guidance is to support you in considering when to ask about criminal records if you currently ask for them as part of your recruitment process. Remember – many employers choose not to ask about criminal records, so don’t assume that you have to ask. However, if you do ask, this guidance should help you in determining when it is best to do so.
The general rule
The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions to be considered spent after a set period of time. Unless someone receives a prison sentence of over 4 years or have any type of indefinite order, a conviction will become spent at some point.
Once a conviction is spent, this entitles someone (for jobs where it applies to), in basic terms, to portray themselves as somebody who has never been convicted, i.e. it allows them ‘to legally lie’ (subject to some exceptions listed below).
Spent convictions should not be used as evidence in employment tribunals, without the consent of the person concerned and questions should not be asked that would elicit or hint at such information.
If a contract of employment asks you to disclose your convictions, you would not be required to disclose any that are spent (see section 4(3) of the ROA). As a general rule, you would not be breaching any employment contract if you failed to disclose a spent conviction and, if you were dismissed for failing to disclose a spent conviction, then you may have legitimate grounds to bring a case of unfair dismissal.
Employers can ask candidates to disclose any unspent criminal convictions at application stage if they believe they have a reason to ask for this information. Applicants with unspent convictions have very little legal protection when applying for work and employers can make a judgement on the suitability of the candidate for the role taking into account unspent convictions.
Please note that GDPR guidance means that collecting criminal record information at the initial application stage if deemed not necessary may breach data protection law, so make sure you state your reason for requesting this information from applicants.
The question about previous unspent convictions may be better suited to the conditional offer stage, as the best candidate for the job may have an unspent conviction and knowing this information at an earlier stage may prevent the employment of the best person for the job (consider that 1 in 3 adult males in the UK have unspent criminal convictions Source: http://recruit.unlock.org.uk
Spent convictions, as detailed above, do not need to be disclosed and therefore unless the role is exempt from the Rehabilitation of Offenders Act 1974 (ROA), the candidate does not need to disclose the spent conviction at any stage of their application or employment.
Examples of jobs exempt from the ROA include:
Doctors, dentists, midwives and nurses
School based jobs
Jobs with social services providers
Jobs that involve the supervision or training of people under the age of 18
Any job that requires an enhanced DBS disclosure.
Summary and recommendations
- Consider carefully if you have a genuine need to ask about unspent criminal convictions at the application stage of recruitment.
- Instead, consider asking about unspent criminal convictions at the conditional offer stage
- Never ask for details about police cautions or spent criminal convictions, the applicant / employee does not need to disclose them and may interpret any decision you make after learning about them as discriminatory.
- The only jobs that are exempt from the Rehabilitation of Offenders Act (ROA) are those that you would perform an Enhanced Disclosure and Barring Service (DBS) check on.