It may come as a surprise to many but, according to an April 2023 report in the Financial Times, some 12 million people have a criminal conviction. This makes the chances of an employer having received an application from someone with a criminal record fairly high. With the need to inform the DVSA of any criminal history of those involved with MOTs, for example, along with securing the business’ finances, understanding who is applying for a job is essential.
Many employers assume that disclosing a criminal conviction is a legal requirement, regardless of the time lapse since the offence, but as Adam Morris, a solicitor at Wright Hassall, comments, for the majority of roles this is not the case. In fact, he says that “employers are restricted in what they can ask applicants during the recruitment process, not only to protect the latter’s privacy, but also to limit any prejudice or negative treatment an applicant may encounter.”
The circumstances governing the need for an applicant to disclose a criminal record to a prospective employer depends on the type of job being applied for and whether or not the conviction is spent.
Rehabilitation of offenders
Morris details that the Rehabilitation of Offenders Act 1974 was designed to help those with convictions get back into employment. He says that the Act “ensures that all cautions and most convictions (bar the most serious, including life sentences) may become ‘spent’ after a set rehabilitation period (the length of which varies according to the length of the original sentence).” This, he says, “effectively means that once an individual’s conviction is spent, they should be treated as if they had not been convicted of that spent offence at all and they are under no obligation to declare it for most purposes.”
Under recent legislation – the Police, Crime, Sentencing and Courts Act 2022 – which came into force in October 2023, there have been significant changes in the rehabilitation periods of which employers need to be aware. In essence, those with a custodial sentence of between one and four years, the rehabilitation period has been reduced from seven to four years (from the day the sentence was completed). Those with custodial sentences of over four years (bar those already excluded such as life sentences or sentences of imprisonment for public protection) will be able to become spent for the first time seven years from the day they completed their sentence.
Despite this relaxation, Morris details that there are roles where employees can be expected to disclose convictions regardless of whether they are spent. This is covered by the Exceptions Order and includes professions relating to the care and / or supervision of children, healthcare professions, legal professionals and certain people employed in the financial sector.
Disclosure and Barring Service (DBS)
In order to assess whether or not an individual is suitable for work in certain positions of trust, Morris says that employers can carry out a DBS check which provides them with the necessary information to make that decision.
“There are,” he explains, “three levels of certificate: basic, standard, and enhanced, and all can be obtained by any individual over the age of 16 (although a countersignature confirming entitlement is required for the standard and enhanced certificates).”
In overview, the basic certificate contains details of unspent criminal convictions; the standard certificate contains details of all spent and unspent convictions and cautions as well as police reprimands and warnings; and the enhanced certificate contains the same information as a standard certificate plus relevant police information and information relating to statutory lists, for instance those unsuitable to work with children.
Morris points out that only employers recruiting for roles contained within the Exceptions Order are eligible to obtain a standard or enhanced DBS certificate. He says that “if this is the case, this must be set out this requirement in the job advert. However, employers should be mindful that disclosure is not a blanket disclosure of all convictions and cautions and will only show basic details of the offence, not the context.” It should be noted that youth cautions, reprimands and warnings are no longer automatically disclosed.
Criminal record data and the ICO
Understandably, individuals are precious about information they would naturally consider private including their criminal past. As a result, Morris says that the Information Commissioner’s Office (ICO) offers useful guidance on pre-employment vetting. He explains that if employers are intending to vet applicants this should be made clear early on in the recruitment process and set out how it will be conducted.
He adds: “Employers should leave vetting until as late as possible in the process and confine it to those who have been selected for the job, rather than subjecting all short-listed candidates to vetting. Further, they also need to be clear why they need criminal records data, what benefit they will derive from having it, and be aware of the intended outcome for the person concerned.”
Finally, Morris says that employers must ensure that the data complies with other relevant law. This means the need to have data protection policies up to date and fully compliant with GDPR. And he gives an example – those normally carrying out a DBS check as a matter of course, “may risk an ICO investigation if they have no lawful purpose for holding such data.”
Dealing with information about a criminal record
There are sectors where certain convictions will preclude an applicant from being employed in that role, for instance a teacher who is on a barred list. However, Morris says that where there is no industry guidance or legislation employers should use their own judgment as to the weight to attach to an applicant’s criminal history. In particular, he says that “employers may also wish to consider whether the conviction is relevant to the position in question; the length of time since the offence was committed; and whether the applicant’s circumstances have changed since the conviction.” He continues: “Although employers may consider unspent convictions – and this is necessary if the role falls withing the Exceptions Order – they should not play a deciding role in a decision whether or not to employ an individual.”
Criminal history is an understandably sensitive area both for employers and job applicants. The law allows those with a criminal record to move on with their lives and not be dogged by an event that might have taken place decades ago. Nonetheless, employers need to tread carefully both to prevent inappropriate individuals from taking positions where they may pose a risk and protect those wanting to stay on the right side of the law.