Spent convictions and DBS checks

14 February 2020

A Criminal Record checks provides the employers with a person’s criminal history. With over 20% of the working age population, having a criminal record today, employers face challenges when recruiting staff and over existing employees.

Employee Convictions

The Rehabilitation of Offenders Act 1974 (1974 Act) states that subject to certain exceptions, convictions will become spent after a certain period, providing there has been no new offences. The period varies depending on sentence, but after the period has past the individual is considered rehabilitated. It is important to keep in mind that some convictions do not have a time limit and will bar an individual from working certain jobs automatically.

Rehabilitation periods should be determined with reference to the law of the jurisdiction to which the matter relates as Scotland /Northern Ireland may have different rehabilitation periods.

It is important to keep in mind that the Rehabilitation of Offenders Act (Exceptions) Order 1975 (the “Exceptions Order”) lists exceptions to the 1974 Act in recognition that there are certain activities for which fuller disclosure of a person’s criminal convictions would be required thus conviction will not be perceived as spent if falling within the list.

Within the Exceptions Order, the type of jobs that fall under its list, relate to jobs which involve access to vulnerable people (both children and adults- regulated activity) and certain professions where trust and honesty are of the utmost importance.

‘Regulated Activity’

Regulated activity is work that a barred person must not do. It is defined in the Safeguarding Vulnerable Groups Act 2006 (SVGA) which has been altered by the Protection of Freedoms Act 2012 (PoFA).

Regulated activity may include jobs like: Child minding teaching, working in specified settings such as schools, childcare premises, care homes, hospitals and detention centres.

Can employment be refused if an applicant has a criminal record?

A refusal to employ a "rehabilitated" person on the grounds of a spent conviction is unlawful (s.4(3)(b) of the Rehabilitation of Offenders Act 1974, however you can legally refuse the job, providing the convictions are relevant to the applicant’s job role and in line with the Rehabilitation of Offenders Act 1974 and Exceptions order. If the applicant is working in a regulated activity, you may also refuse employment based on spent convictions. However, the DBS Code of Practice states that DBS applicants with a criminal record should be treated fairly and not be discriminated against based on criminal activity that is not relevant to their job post. This is one of the most crucial part when deciding whether to employ an individual with a criminal record. It is vital to consider the effect that their record would have on their role.

Recruitment Process

During the recruitment process if the employer obtained knowledge of the applicant’s criminal record, their actions on how to proceed with the application will depend on the type of conviction disclosed.

  • If the conviction is spent and the position applied for doesn’t fall within the Exception Order than the employer should not refuse employment on this basis of a spent conviction as the candidate could bring a claim based upon breach of statutory duty / right and the employer on the evidence would need to prove that the decision not to offer you the position was based wholly or mainly on matters unrelated to the spent conviction .

  • If the conviction is spent, but the position applied for falls within the Exception Order, the employer can and in some cases must refuse to employ such individual if the legislation specific to that sector would make it unlawful for an offer of employment to be made. If the conviction is not spent, the employer may decide not to employ that individual.

Existing employees

If the employer has discovered that an existing employee has a criminal conviction, they will need to consider their actions carefully, as any employee with more than 2 years’ service (1 year in Northern Ireland) will be eligible to bring an unfair dismissal claim. In Property Guards Limited v Taylor & Kershaw [1982] IRLR 175, 2 candidates applied for the positions of security guards in the Company. They have not declared any convictions as those were of ‘minor’ offences and were spent. A few months later the Company found out about the employees’ convictions and dismissed them. After bringing a claim to an employment tribunal for Unfair Dismissal, the EAT upheld their claim on the basis of although a job of security guard required a person of good character it is not one of the occupations listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

For employees with less than 2 years’ service the risk of a claim is limited, as they will not be able to bring the claim solely on the that reasons unless it is linked to an automatically unfair dismissal based on discrimination or whistleblowing. However, if the employee’s conviction is spent, it is unlikely to be a fair reason to dismiss unless it falls under the Exceptions Order.

Should an employee commit an offence at a later stage of their employment, it may cause questions regarding their suitability for the role. However, it is important not to have a ‘knee-jerk’ reaction to the offence and it is important that you bear in mind the effect that the offence has on the role.

If you would like further information or guidance on spent convictions or DBS checks please call us on 0333 240 7208 or contact us here.

Contact Us

Looking for Support

Error loading Partial View script (file: ~/Views/MacroPartials/InsertUmbracoFormWithTheme.cshtml)

Quest Contact Details

Telephone
01455 852028 – General enquiries

* Please note that all calls may be recorded for training or monitoring purposes.

Email
hello@questcover.com – Sales enquiries