Setting the record straight – asking applicants about their criminal record
Some of you may have seen the statistics recently which claimed that “1 in 5 employers break the law in asking candidates about their criminal record.” In my view that was potentially misleading, and I thought it would be helpful for me to explain the position further.
For most jobs, the disclosure of criminal records is covered by the Rehabilitation of Offenders Act 1974. This only requires unspent convictions to be disclosed if a candidate is asked about their criminal record. Those who have been convicted of a criminal offence but who have not re-offended during a specified period from the date of conviction are considered to be rehabilitated and their convictions become "spent". Unless one of the exceptions applies (such as the crime being of such a serious nature that it is never “spent”), a person with a spent conviction is allowed to hold themselves out as having a clean record. Until that time, the conviction should be disclosed in response to a question asking for details of a criminal record.
The way the Rehabilitation of Offenders Act works in practice is that there is nothing to stop an employer asking applicants about their criminal convictions, but if that person has spent convictions then they would not need to disclose them (except if they are applying for a role where an exception applies, about which more below).
Therefore the suggestion that it is unlawful for employers to ask about previous convictions is clearly not correct. If someone discloses a spent conviction because they didn’t realise how the system works, then that is not the employer’s fault. It is fair to say that some people feel that more should be done to make it clear to offenders when exactly their convictions will become spent and what that means. It is also arguable that some employers could make their questions clearer to ensure they specifically exclude spent convictions. However, neither of these is the same thing as it being unlawful for employers to ask a candidate about any convictions.
As you would expect, there are some particular types of jobs that require applicants to be subject to certain checks, which involve the disclosure of all previous criminal convictions. An individual must disclose convictions that they are otherwise entitled to treat as being spent where an individual is applying for an excepted occupation, office or profession. The excepted occupations, offices and professions are defined in the legislation and fall into five broad groups:
- Professions (such as doctors, lawyers, accountants, vets, chemists and opticians).
- Those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens).
- Certain regulated occupations (such as, financial services, those in charge of certain types of nursing homes, taxi drivers and firearms dealers).
- Those who work with children, provide care services to vulnerable adults or who provide health services.
- Those whose work means they could pose a risk to national security (such as air traffic controllers and certain Crown employees).
Employers with staff who perform these types of roles will of course be familiar with the process of applying for DBS checks, which check criminal records of individuals in the excepted occupations, offices and professions.
Any information obtained about previous convictions (whether spent or otherwise) is of course highly sensitive, and employers will need to ensure they comply with their data protection obligations in terms of how they store and process that data.
If you currently include a question about previous convictions in your recruitment process, and you would like advice about the best approach to take, do get in touch with our team who will be happy to help.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).