It is common for potential employers and employment businesses to ask candidates to give details of any previous convictions.
You may also have procedures in place to undertake these checks for existing employees moving to new roles, especially where the position is deemed sensitive.
The Rehabilitation of Offenders Act 1974 (“the 1974 Act”) allows an individual who has been convicted of certain offences to treat the conviction as though it had never happened. These are known as ‘spent’ convictions . In general a conviction cannot be spent if it incurred
a sentence of more than two and a half years;
a life sentence;
preventative detention, or its equivalent for young offenders.
The Act does not apply to certain classes of occupations and offices. In other words spent convictions may be a ground for refusing someone employment or dismissing him or her if the job is within the excepted classes of employment and professions. These include employment involving supervision or contact with children, young persons and the vulnerable.
However in general, anyone who has been convicted of a criminal offence, and who has been sentenced to two and a half years imprisonment or less, may after a period of time known as the “rehabilitation period” treat that conviction as though it never took place, provided no further conviction for a serious offence has taken place in the meantime.
This means that an employer may only ask a candidate for employment if they have any ‘unspent’ convictions unless they are included in the Exceptions Order to the Rehabilitation of Offenders Act 1974. The employee is not obliged to disclose those that are treated as spent. The Act also makes it unlawful for an employer to discriminate against an employee, or dismiss him because of a spent conviction. If the employer does so an employee may claim unfair dismissal.
Employment businesses, which supply temporary workers to a client, are deemed to be employers and permitted by the CRB to apply for Disclosures where permitted under Act at the time they take the worker onto their books. By contrast, Employment Agencies, which introduce candidates for employment with the client direct are only permitted to obtain a Disclosure if the employer who will be employing the candidate is permitted to do so and only then once the offer of employment has been made.
A prospective employer may not ask an applicant or candidate to declare any spent criminal convictions in relation to employment other than the excepted classes of employment and excepted professions listed. The following is an example of the way in which such a request for information should be phrased:
“Do you have any unspent criminal convictions? If yes, please list your criminal convictions and their dates below. The information you give will be treated in confidence and only taken into account where, in the reasonable opinion of [insert name of business], the offence is relevant to the post for which you are applying. Failure to declare a conviction may require us to exclude you from our register or terminate an assignment if the offence is not declared but later comes to light.”
