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

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.

Rehabilitation periods

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:

Asking about criminal records

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.

Excepted posts

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:

  • 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 Government guide 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.

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.

Checking criminal records

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.

Types of checks available

There are 3 different types of checks (disclosures) that can be undertaken:

  • 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' (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 government guidance (PDF) for more information.

Scotland

In Scotland criminal record checks need to be carried out through Disclosure Scotland. Applications can be made for basic, standard and enhanced disclosure.

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

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 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

A separate but aligned scheme is being set up in Scotland called 'The Protecting Vulnerable Groups Scheme' (PVGS). 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 guidance.