Employers can question a job applicant about any criminal record but this questioning is subject to a fairly complex regime intended to protect certain individuals and enable them to be rehabilitated.
When dealing with individuals who have criminal records the law attempts to maintain a balance between:
- rehabilitation: allowing people with criminal records to move on with their lives and contribute to society
- recognition: recognising that there is an overriding need for disclosure in certain situations and to protect certain groups from those who have committed certain offences
It is therefore important that employers also seek to maintain the same balance in the recruitment process.
The Rehabilitation of Offenders Act 1974
The treatment of individuals with existing criminal records is set out in the Rehabilitation of Offenders Act 1974 (the Act).
Subject to certain exceptions, a person who has been convicted of a criminal offence, but who does not re-offend during a set 'rehabilitation period' (determined by the type of sentence imposed rather than the crime committed) is considered to be 'rehabilitated'. They are therefore treated as if they never committed the offence and their conviction becomes 'spent'.
Unless one of the exceptions applies (see below) a job applicant or employee will not need to disclose any spent conviction to an employer (even where there is a direct request for that information or a contractual requirement to disclose) and they will be legitimately entitled to hold themselves out as having a clean record.
In terms of the exceptions which apply, a conviction will never become spent if an individual is given a custodial sentence of over four years, or has received a public protection sentence (which is a custodial sentence for specified sexual and violent offences).
Certain 'exempt' occupations, offices and professions will always require disclosure of both spent and unspent convictions, and employers will be able to take that information into account when determining suitability for the role. The 'exempt' occupations include jobs:
- in a profession - including medics, lawyers and accountants;
- which uphold the law - including judges, police and prison officers
- which are regulated by an external body - including those within the financial services and nursing homes
- involving work with children or vulnerable adults
- involving national security - including air traffic controllers
Employers should only ask questions about spent and unspent convictions for the purpose of assessing the applicant's suitability for an 'exempt' occupation, office or profession, and must inform the individual why the 'exempt' question(s) is being asked. An individual's failure to answer will be a valid reason to withhold employment or to dismiss, as will dishonest answers.
The Data Protection Act 1998
Section 56 of the Data Protection Act 1998 (DPA) came into force on 10 March 2015. This provision makes it a criminal offence for an employer to require a job applicant, or an existing employee, to obtain a copy of their criminal record, including convictions and cautions, by means of an 'enforced subject access' request.
Such, 'enforced subject access' requests were previously common where an employer wished to see an individual's criminal record, including both spent and unspent convictions, without using the appropriate and legal, criminal records disclosure regime.
Following the coming into force of section 56, continuing to use the 'enforced subject access' method will amount to a criminal offence which can be heard by either a Magistrates Court or a Crown Court. In England and Wales, organisations that are convicted of the section 56 offence will face an unlimited fine alongside the threat of reputational damage.
The Information Commissioner's Office is also vigilant in its policing of breaches of the DPA and will name and shame those organisations found to be breaching the legislation.
The correct approach
The appropriate way of accessing an individual's criminal records is to use the appropriate criminal record disclosure regime. In England and Wales this is operated by the Disclosure and Barring Service (formally the Criminal Records Bureau) and in Scotland by Disclosure Scotland.
Organisations can request various checks depending upon the role for which an applicant is applying or which an employee holds. In particular, an employer may choose to make the following requests from the DBS:
- a basic check - which would disclose unspent convictions
- a standard check - which would include spent and certain unspent convictions, cautions, reprimands and final warnings
- an enhanced check - which would disclose all the information held in a standard check plus certain relevant information held by the police on an individual
- an enhanced with barred list check - which is like the enhanced check, but includes a check of the DBS Barred lists
Tips for employers
- Organisations which have historically adopted the practice of enforced subject access requests will need to reconsider their overall recruitment processes.
- Make it clear early on in the recruitment process whether criminal records checks will take place and when and how these will be conducted.
- Questions about criminal records should be asked once the successful applicant has been chosen and the employer has offered employment. Vetting all short-listed candidates in respect of criminal records should be avoided.
- Any offer of employment should be clearly made subject to receipt of satisfactory background checks.
- Applicants should not be led to believe that they have to disclose spent convictions when they do not.
- Always use the appropriate regime for checking for the disclosure of criminal records, ie, the DBS.
- Consider the content of the DBS checks carefully when the role is not exempt. Is the conviction relevant to the position in question? Was it a serious offence? How long has passed since the offence was committed? Have the applicant's circumstances changed since the offence?
- Where the role is not exempt, do not make recruitment or continued employment decisions based on 'spent' convictions, even where the discovery has been inadvertent.
- Consider whether it is appropriate to place a clause in the employment contract to the effect that employees must disclose the commission of any criminal offences committed during employment.
- Information about the commission, or alleged commission, of criminal offences amounts to sensitive personal data under the DPA, and should only be processed with the explicit consent of the individual. Any processing should also be adequate, relevant and not excessive.
Read more about the changes to the law around disclosing convictions.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.