You must be careful in selecting staff. No employer can be faulted for asking the question 'Do you have any criminal convictions?' in a job application form, as long as you have implemented adequate procedures to deal with the answer.
However, problems can arise if you do not understand its responsibilities under legislation.
The Rehabilitation of Offenders Act 1974 and Rehabilitation of Offenders (Northern Ireland) Order 1978 apply to all types of convictions. These include term of imprisonments, fines, probation periods, absolute or conditional discharges, or findings in a juvenile/young offenders court.
Certain convictions are considered 'spent' once a period of time passes. This is known as the 'rehabilitation period'. The length of the rehabilitation period depends on the type and length of sentence, as well as the age of the offender at the time of their conviction. The more severe the penalty, the longer the rehabilitation period.
After the rehabilitation period, as long as the applicant does not re-offend during the rehabilitation period, their conviction is considered to be 'spent'. They will then become a 'rehabilitated person'.
Length of rehabilitation periods
The rehabilitation periods differ slightly depending on where in the UK the offender lives. For example, if the offender lives in England, but the offence is committed in Scotland, then the rehabilitation period for England will apply.
In Scotland and Northern Ireland, the rehabilitation periods start from the date of conviction. In England and Wales, the periods are based on the length of the sentence plus an additional specified period.
For more information on the rehabilitation periods for each country, see:
A rehabilitated person is not usually obliged to disclose that they have a criminal record. There are exceptions though, as some jobs require an applicant to disclose certain types of spent convictions (see below).
If you ask whether an applicant has any criminal convictions in a job application form, you should have facilities in place to protect the confidentiality of this information. You must also properly handle the applicant's responses according to the Data Protection Act 1998.
In addition, you should also indicate in the form that you do not expect applicants to disclose spent convictions. However, this doesn't apply if the post is an exception.
Ideally, you should use a separate criminal convictions declaration form to get information about criminal convictions from a job applicant.
You need to take care that a conviction that is not 'spent' when it is first recorded in the personnel files is properly handled if and when it later becomes spent.
If a post is an excepted post, the applicant must reveal certain types of spent convictions or spent cautions. A caution includes conditional cautions, reprimands or final warnings. The list of exempt posts broadly covers:
Applicants for these types of jobs must reveal all spent convictions, unless all of the following statements are true:
Applicants for these types of jobs must reveal all spent cautions, unless all of the following statements are true:
A disclosure certificate from AccessNI will not contain certain convictions and cautions for minor or old offences. Seefor more information.
Criminal-record checks should be obtained if the applicant is applying for an excepted post or if they will be working with children and/or vulnerable adults. It should be obtained with the knowledge and consent of the applicant. The methods of obtaining a criminal record check and the type of information available vary slightly between England & Wales, Scotland and Northern Ireland.
There are 3 different types of checks (disclosures) that can be undertaken:
Criminal record checks for England and Wales are undertaken by the Disclosure and Barring Service or 'DBS' (previously called the Criminal Records Bureau). Generally an employer is unable to get a disclosure from the DBS. However, both of the 'enhanced' DBS disclosures are available for employers employing staff who work with vulnerable people (e.g. children and the elderly) or for posts that are exempt from the Rehabilitation of Offenders Act 1974. See the Gov.uk website for further information on obtaining such checks.
Note that since June 2013, the DBS will filter out from checks any spent convictions and spent cautions for less serious offences. Accordingly, applicants will not have to disclose these. Spent convictions and spent cautions for more serious offences (known as 'listed' offences) are still disclosed. See the(PDF) for more information.
In Scotland criminal record checks need to be carried out through. Applications can be made for basic, standard and enhanced disclosure.
In Northern Ireland criminal record checks need to be carried out through. Applications can be made for basic, standard and enhanced disclosure.
The Disclosure and Baring Service (DBS) has replaced both the Independent Safeguarding Authority and the Vetting and Barring Scheme in England, Wales and Northern Ireland.
Employers have a legal requirement to perform additional checks if the job involves working with children or vulnerable adults. The law requires that if the role involves working with children or vulnerable adults in a, then:
Ideally the enhanced DBS check should be obtained before offering someone the job, otherwise you should make the offer subject to obtaining a satisfactory report.
A separate but aligned scheme is being set up in Scotland called '. The PVGS only applies to people who work with vulnerable groups and it does not apply to personal arrangements that people make with friends or family, or to work positions where there is no opportunity to cause harm to vulnerable groups. The PVGS will be phased in over a four-year period, which is expected to commence in February 2011. It will be run by Disclosure Scotland, who have provided .