Law guide: Employment

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Employing staff with criminal convictions

Employing staff with criminal convictions

Contents

Employing staff with criminal convictions

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

You have an obligation to consider the risks to individuals and your existing staff before employing someone with a criminal conviction. It's therefore recommended that you ask all applicants whether or not they have any previous criminal convictions. If you don't expressly ask this, it may prove very difficult to take action against an employee who doesn't disclose a conviction when they should have.

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.

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 (forgotten) 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.

Spent convictions and cautions don't need to be disclosed by candidates except in relation to certain roles.

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;
  • 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 for excepted roles do not need to reveal spent convictions/cautions (England & Wales)

If the job is in England or Wales, applicants for these types of jobs must reveal all spent convictions/cautions, except in the following circumstances:

  • The conviction was for a non-specified offence (see below) 11 or more years ago, it didn't result in a prison sentence (including suspended sentences), and they were aged 18 or over at the time.
  • They were cautioned for a non-specified offence 6 or more years ago, and aged 18 or over at the time.
  • The conviction was for a non-specified offence 5-and-a-half years ago or more, it didn't result in a prison sentence (including suspended sentences), and they were under 18 at the time.
  • They were given a caution, reprimand or a warning and were under 18 at the time.

A specified offence is a list of offences that will always be disclosed (i.e. never be filtered) in a Standard or Enhanced DBS certificate. The list covers serious crimes, such as those related to violent or sexual offences or offences against children or elderly people. A non-specified offence is one that is not on this list.

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

If the job is in Northern Ireland, applicants for these types of jobs must reveal all spent convictions/cautions, except in the following circumstances:

  • The conviction was for a non-specified offence (see below), 11 or more years ago, it didn't result in a prison sentence (including suspended sentences), and they were aged 18 or over at the time.
  • They were cautioned for a non-specified offence 6 or more years ago, and aged 18 or over at the time.
  • The conviction was for a non-specified offence 5-and-a-half years ago or more, it didn't result in a prison sentence (including suspended sentences), and they were under 18 at the time.
  • They were given a caution (including restorative cautions) for a non-specified offence, or agreed to diversionary youth conferences 2 or more years ago, and were under 18 at the time.
  • They received an informed warning (at any age) for a non-specified offence, one or more years ago.

A specified offence is a list of offences that will always be disclosed (i.e. never be filtered) in a Standard or Enhanced DBS certificate. The list covers serious crimes, such as those related to violent or sexual offences or offences against children or elderly people. A non-specified offence is one that is not on this list.

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

Certain spent convictions do not need to be disclosed by candidates if either one of the following statements is true:

1. The spent conviction is not in either the list of offences that must always be disclosed or list of offences that must be disclosed according to rules.

2. The offence does appear in the list of offences that must be disclosed according to rules but it is a protected conviction and they:

  • were convicted over 11 years ago and 18 or over at the time; or
  • were convicted over 5-and-a-half years ago and under 18 at the time; or
  • received a sentence of absolute discharge from a court, or discharge from a children's hearing.

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.

Coronavirus update: As a result of the COVID-19 pandemic, the Disclosure and Barring Service has introduced temporary changes when applying for a criminal record check. See our Coronavirus (COVID-19) section under 'Temporary changes to applying for a criminal record check due to coronavirus'

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.

Coronavirus update: As a result of the COVID-19 pandemic, Disclosure Scotland has introduced temporary changes when applying for a criminal record check. See our Coronavirus (COVID-19) section under 'Temporary changes to applying for a criminal record check due to coronavirus'

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.

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