The Rehabilitation of Offenders Act provides that, after a certain period of time, individuals who have been convicted of, or cautioned for, certain criminal offences and who have served their sentences are, with some exceptions, not obliged to disclose those convictions or cautions to a prospective employer (unless that individual has re-offended). The conviction or caution becomes ‘spent’.
Different rehabilitation periods apply in England, Wales and Scotland and different legislation applies in Northern Ireland. Rehabilitation periods for custodial sentences (i.e., for imprisonment, including suspended sentences), except for the most serious offences, were reduced in England and Wales only with effect from 28 October 2023.
The purpose of this reform to criminal records disclosure is to assist those trying to rehabilitate after having served their sentence. The reduced rehabilitation periods are in response to evidence that having to disclose a caution or conviction long after completion of a sentence can be a barrier to people getting a job, finding somewhere to live, getting onto a higher education course or even finding insurance.
Since 28 October 2023, an amendment to the Rehabilitation of Offenders Act (the Act) provides that for adults, custodial sentences of four years or less (and of more than four years for some less serious crimes) are deemed ‘spent’ after a period of rehabilitation of up to seven years after the sentence has been served, provided that no further offence is committed in that period. The rehabilitation periods for those under 18 years is half the length. Where an individual reoffends during the rehabilitation period, they will have to disclose both their original and subsequent offences to employers for the duration of whichever rehabilitation period is longer.
This means that if the certificate from the Disclosure and Barring Service (DBS) is dated 28 October 2023 or later, then the new rules have been applied. Certificates with any date before the 28 October will have been processed using the old rules. Employers will not however need to request new DBS checks as a result of this law change.
What should employers do in light of the reduced rehabilitation periods that have applied since 28 October 2023?
In respect of roles which require a DBS check, no further action is required in light of these changes to the rehabilitation periods. This change also means that some older criminal convictions will no longer show up on basic DBS checks, as these show unspent convictions only. For new recruits, employers will need to ensure that any recruitment forms or processes which require declaration of offences that are unspent (and that expressly refer to the previous longer rehabilitation periods) are updated to reflect these new shorter rehabilitation periods.
What if I want to know a recruit’s criminal history before employing them?
Employers will want to ensure, so far as possible, that the candidate they recruit is suitable for the particular role. It is important when making the right hire that employers carry out their own due diligence. Employers will often ask for references and other background checks for this purpose and may make satisfactory references/criminal record checks a condition of employment in their job offer letter and/or employment contract. All employers can potentially ask their recruits for a basic check with the Disclosure and Barring Service (DBS) provided that (in order to comply with data protection legislation) the check is relevant to the position recruited for. Only unspent convictions and cautions show up on a Basic check.
Once a conviction is spent, an individual has a legal right not to disclose it, unless the role the employer is recruiting for is subject to an elevated level of DBS check, for example when applying for a job working with children or vulnerable adults, or a regulated profession, which will show unspent convictions also. The government’s policy paper on rehabilitation cites that 50% of employers would not consider hiring an ex-offender but obtaining employment within 12 months’ release from prison could reduce reoffending by 5-10 percent. The criminal records disclosure system aims to strike a balance between protecting individuals and businesses and recognising that offenders who have desisted from crime should be able to move on and fully participate in society. Employment is clearly a very important part of rehabilitation and an individual’s security and life prospects. For this reason, where a DBS check shows a past criminal conviction, as best practice (although not a statutory requirement), the recruitment decision should still be made on a case-by-case basis, assessing any likely risk of employing the individual which may be presented to the employer, other staff and clients viewed in the context of the specific nature of the role, rather than approached as a simple “pass/fail”. Employers may also lose out on good candidates by adopting a rigid approach to the results of DBS checks.
The government has published guidance for employers which outlines what good practice looks like, with sample recruitment templates and case studies highlighting the benefits of employing people with convictions. The guidance can be accessed at: NFN Future Skills Network booklet (newfuturesnetwork.gov.uk). Further material on the FSB website can be found here: https://www.fsb.org.uk/resources-page/entrepreneurs-unlocked.html
Can you dismiss or decide not to offer employment to an employee or job applicant with a criminal conviction?
Potentially, yes. However, to avoid an unfair dismissal claim where an employee has at least two years’ service you will need to prove that dismissal for this reason is fair. Except for those jobs or professions where there is a legal right to request an enhanced DBS check which will show any spent convictions, employers do not have a legal right to ask employees or recruits to disclose spent convictions. Although the Act states that an employer cannot refuse to employ or dismiss someone because they have a spent caution or conviction unless an exception applies, there is no penalty for failing to comply with this provision. The Act does not provide any individual who is dismissed or refused employment contrary to the Act with any entitlement to compensation or any other remedy. Unless an exception applies, dismissing an employee due to a spent conviction, or a failure to disclose a spent conviction will be an unfair dismissal, although only employees with at least two years’ service in Great Britain, or one year’s service in Northern Ireland can bring claims for ordinary unfair dismissal.
See the fact sheet on ‘criminal records and employment’ on the FSB Legal and Business hub for guidance for employers in the UK.