Criminal convictions - what can an employer ask?

Employers or other organisations used to be free to ask a job applicant, employee, worker or volunteer about any criminal records.  The Rehabilitation of Offenders Act 1974 was designed to help rehabilitate people with criminal records in order for them to move on with their lives and contribute to society.  All concerned were, however, keen to balance this objective against an overriding need for disclosure of criminal convictions, especially where vulnerable groups need to be protected from those who have committed certain offences.

The Rehabilitation of Offenders Act says that a person who had been convicted of a criminal offence but has not reoffended during a specific period of time (the rehabilitation period) was considered to be rehabilitated and the conviction became spent.  During the rehabilitation period the conviction should be disclosed in response to a request for details of the individual’s criminal record.  However, after this period a person was not obliged to disclose spent convictions and could hold themselves out as having no criminal convictions (although there are certain exemptions to this rule). 

Some employment positions – and certain voluntary ones – are subject to a Criminal Record Bureau (CRB) check and in these cases all convictions, spent and unspent, must be disclosed to the employer.  So for example, where a person in their 60s with a single offence of shoplifting 40 years ago applied for a job caring for vulnerable adults, that conviction would show up on the criminal record check.  It would be highly likely that the potential employer would not consider that person for that vacancy.

Recently the Court of Appeal held that this “blanket disclosure” of all convictions and cautions was a disproportionate means of achieving a legitimate aim of protecting employers and children and vulnerable adults.  The Court of Appeal’s objection was that the CRB checks did not attempt to control the disclosure of information by reference to whether it was relevant to the assessment of the suitability of an individual for a particular type of work.  The Court of Appeal said that a number of factors need to be taken into consideration when deciding whether a conviction or a caution should be disclosed to the employer.  As a result of that judgment, the Rehabilitation of Offenders Act was amended.

The Criminal Records Bureau has now merged with the Independent Safeguarding Authority to become the Disclosure and Barring Service (DBS).  There have been other changes: a Standard CRB Check has become a Standard DBS Check and an Enhanced CRB Check has become an Enhanced DBS Check.

Now a conviction received by a person who was under 18 at the time of the offence and which resulted in a non-custodial sentence, will be removed from a DBS Certificate after five and a half years

A conviction received as an adult, which resulted in a non-custodial sentence, will be removed from a DBS Certificate after 11 years.

In order to continue to safeguard certain groups of people there are specified offences, such as violent or sexual offences, which are never eligible for filtering.  Also, where a person has committed more than one offence the details of all convictions will be disclosed.

In the past it was common for employers to ask individuals to provide details of all convictions and cautions.  If the application was for one of the excepted professions then the application form would usually indicate that they had to declare spent convictions.  Under the old CRB Certificates, both spent and unspent convictions would be set out if the applicant was applying for one of the excepted positions.

Since these changes, the Ministry of Justice has advised that the employer should use the following question in application forms:

“Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?”

Guidance can be found on the Disclosure and Barring Service website and information for employees can be found at www.unlock.org.uk – a national charity which assists people with convictions.

For more information, please contact Reggie Lloyd on 01206 217347 or [email protected].