Law guide: Employment

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Employing staff with criminal convictions

Employing staff with criminal convictions

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Employing staff with criminal convictions

A criminal record includes convictions and cautions. A caution includes conditional cautions, reprimands and final warnings.

Asking about criminal records

There are two areas of law to consider before you ask about criminal records or conduct a criminal record check:

1. Data protection: the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA).

2. The Rehabilitation of Offenders Acts (or Orders in Northern Ireland) and their associated exceptions orders that say you must not ask about convictions that aren't 'spent' unless they are for some specific 'excepted' roles (see below).

Data protection

If you request and process information relating to criminal offences you must comply with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.

For general information, see our section on Data protection. You may also wish to refer to the Information Commissioner's Office's website, in particular its Guide to the GDPR.

However, the Information Commissioner's Office has not as yet, provided guidance on this area. Until it is received or there are some comments by the courts or tribunals, it will be difficult for employers to know when to ask about an applicant's criminal record.

If you do conclude that you're entitled to 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 General Data Protection Regulation and the Data Protection Act 2018.

In addition, you should also indicate in the form that you do not expect applicants to disclose spent convictions. 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' (see below) when it is first recorded in the personnel files is properly handled if and when it later becomes spent.

Rehabilitation periods

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, and 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', which means they must be treated as a person who has not committed, been convicted of, or charged with the criminal offence, i.e. they can hold themselves out as having a clean criminal record.

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:

As mentioned above, a rehabilitated person is not usually obliged to disclose that they have a criminal record.

However, both spent and unspent convictions must be disclosed if the occupation is listed in the:

  • Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, for jobs in England & Wales
  • Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979, for jobs in Northern Ireland
  • Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013, for jobs in Scotland

Occupations contained in the above legislation are known as being 'excepted', meaning they may be taken into account in recruitment decisions.

Excepted occupations

If a post is an excepted post, the applicant should reveal certain types of spent convictions or spent cautions if asked about them. A caution includes conditional cautions, reprimands or final warnings.

The list of exempt posts – i.e. posts for which an applicant may have to take spent convictions into account – broadly covers:

  • doctors, dentists, opticians, nurses and midwives, solicitors, pharmacists, taxi drivers, vets, traffic wardens and teachers;
  • work in the health service where there is access to patients;
  • work in social services where there is access to people with disabilities, the young, the elderly, the sick or other vulnerable adults;
  • work where there is access to people under the age of 18;
  • work involving the administration of justice, e.g. court officials, the police, probation officers, prison staff;
  • applications for certain certificates or licences e.g. for gaming or firearms or explosives;
  • any occupation concerned with the management of a private hospital or nursing home;
  • certain occupations where national security may be at risk such as working for the Civil Aviation Authority; and
  • in England and Wales only: where an applicant is applying for a job that involves contact with children or vulnerable adults and this job is a 'regulated activity'. See the DBS eligibility guidance for more information, including a full definition of this term. Note that changes to the original definition have been scaled back under the Protection of Freedoms Act 2012.

When applicants do not need to reveal spent convictions (England & Wales)

Applicants for these types of jobs must reveal all spent convictions, unless all of the following statements are true:

  • the job is in England or Wales;
  • the conviction was at least 11 years ago and they were aged 18 or over at the time, or the conviction was at least 5.5 years ago and they were aged under 18 at the time;
  • the offence was not a 'listed offence' (e.g. related to violent or sexual offences, or offences against children or elderly people);
  • they were not imprisoned or they did not serve a service detention; and
  • it is their only conviction.

Revealing spent cautions

Applicants for these types of jobs must reveal all spent cautions, unless all of the following statements are true:

  • the job is in England or Wales;
  • the caution was at least 6 years ago and they were aged 18 or over at the time, or the caution was at least 2 years ago and they were aged under 18 at the time; and
  • the offence was not a listed offence.

Even for most excepted posts, the DBS will filter out from checks 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 List of offences that will never be filtered for more information.

However, the English courts have ruled that the current legislation is unlawful because it sometimes makes it unfairly difficult for individuals to get jobs.

When candidates do not need to reveal spent convictions (Northern Ireland)

A disclosure certificate from AccessNI will not contain certain convictions and cautions for minor or old offences. See AccessNI for more information.

However, for most roles an employer should apply judgment in deciding how relevant an offence is to the role in question. It's recommended that you don't have a blanket ban on employing ex-offenders and instead carry out an assessment of the relevance to the position.

When candidates do not need to reveal spent convictions (Scotland)

A higher-level disclosure certificate from Disclosure Scotland will not contain certain convictions for minor or old offences if a spent conviction appears on the list of offences which must be disclosed according to rules and is a 'protected conviction'. See Disclosure Scotland for more information.

Checking criminal records

Official criminal-record checks should be considered 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.

Types of checks available

There are 4 different types of checks (disclosures) that can be undertaken:

  • Basic check: This is a check that an individual can request themselves, rather than being requested by another (e.g. a potential employer) like the other types of checks. These only contain convictions that aren't spent under rehabilitation of offenders legislation.
  • Standard disclosure: This will contain details of a person's criminal convictions including any relevant 'spent' convictions, cautions, reprimands and warnings.
  • Enhanced disclosure: As above but will include any additional information held by the local police force that they reasonably consider to be relevant and appropriate to the post applied.
  • Enhanced with list checks: This includes all the information contained in the enhanced disclosure, but with the addition of checks being made against a list of individuals who are barred from working with children or vulnerable adults.

England & Wales

Criminal record checks for England and Wales are undertaken by the Disclosure and Barring Service or 'DBS'. 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.

Scotland

In Scotland criminal record checks need to be carried out through Disclosure Scotland. Applications can be made for basic, standard and enhanced disclosure. However, the law in Scotland is also being reconsidered.

Northern Ireland

In Northern Ireland criminal record checks need to be carried out through Access NI. Applications can be made for basic, standard and enhanced disclosure.

Staff working with vulnerable people

The Disclosure and Barring Service

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 regulated activity, then:

  • You must request an 'enhanced with list check' from the DBS to obtain information on the candidate that you wish to recruit. This should then tell you whether the individual appears on one of the lists managed by the DBS of people who are unsuitable for working with children and/or adults. Employing someone (whether an employee, worker or volunteer) who appears on a barred list will be a criminal offence.
  • You must notify the DBS if you dismiss or move an employee if you believe that they pose a risk to children or vulnerable adults. Failure to do so will also be a criminal offence.

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.

Protecting Vulnerable Groups Scheme - Scotland only

Scotland has a separate, but aligned scheme, called 'The Protecting Vulnerable Groups Scheme (PVG Scheme). The PVG Scheme 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. It is run by Disclosure Scotland.