Important changes to the Rehabilitation of Offenders Act 1974 (“ROA”) came into force on 28 October 2023. These changes have reduced the period of time that community sentences and most custodial sentences need to be disclosed to potential employers. The changes affect England and Wales; different rules are in place in Scotland and Northern Ireland.
Rehabilitation of Offenders Act 1974
The ROA exists primarily to support the rehabilitation of individuals with convictions into employment. It provides the legal framework for convictions to be considered as ‘spent’ after a specified period of time known as the rehabilitation period, allowing those with minor offences to move forward with their lives without having to disclose their past convictions. The length of the rehabilitation period depends on the sentence.
Dependent on the type of role, prospective employers can request that applicants self-disclose by way of a criminal record declaration. Such a request should not be framed in a way that would encourage the applicant to disclose more information than is legally necessary for their suitability for the role to be considered. Failure to meet this requirement could lead to a civil claim or a fine from the Information Commissioner’s Office. Whilst there is no legal requirement to ask applicants about their criminal record, certain sectors will have regulatory standards.
There are, of course, formal processes in place to verify any information that has been disclosed by an applicant. Most vetting checks in England and Wales are through the Disclosure and Barring Service (“DBS”) but other checks include Security Clearance, Counter Terrorism Checks and Developed Vetting, amongst others. The type of vetting check is dependent on the specific role. For further guidance on what information an employer is entitled to request and what information will be disclosed through certain checks, please see the Government guidance on the ROA and the Exceptions Order 1975 and the DBS filtering guidance.
As employers only carry out DBS checks for certain roles, they will often only become aware of a prospective employee’s criminal conviction if disclosed to them. Whilst prospective employees have a legal obligation to disclose any unspent convictions during the rehabilitation period if asked by the prospective employer, once this period has come to an end (the conviction therefore becoming ‘spent’) they will no longer be required to disclose the conviction. The reduction to the rehabilitation period means that certain convictions that would have been ‘unspent’ under the previous rules are now ‘spent’, meaning an employer is not informed of these convictions.
A spent conviction or caution won’t show up on basic DBS checks, only standard or enhanced DBS checks, and does not have to be disclosed when applying for most jobs.
New rehabilitation periods
The rehabilitation periods that now apply are as follows:
|Adult community order
|The last day on which the order has effect
|Youth rehabilitation order / Referral order
|The last day on which the order has effect
|Custody of less than 1 year
|Custody of between 1 and 4 years
|Custody of more than 4 years (This does not include serious violent, sexual, or terrorist offences, as these will never become spent.)
If an individual reoffends during the rehabilitation period they must disclose the original and subsequent offences to employers.
For the full updated Government guidance on the disclosure of criminal records, see here.
Advice for employers
According to the Government, over 120,000 former offenders will find it easier to get work because of this change in the law. The charity Unlock, welcomes the changes but is of the view that the current system remains “complex, unfair and ineffective in many respects” and is calling for further reform.
It is important that employers are familiar with the revised rehabilitation periods and understand how these changes may affect recruitment processes. Around 1 in 4 people of working age in the UK have a criminal record, so it’s likely that many employers will experience criminal record disclosure at some point during recruitment.
Any policies and procedures that affect the recruitment and employment of those with criminal records should be reviewed to ensure they are up-to-date and in line with the new legislation.
Should you wish to discuss reviewing or updating your policies and procedures, receive training on vetting procedures or would like to seek legal advice when dealing with prospective employees who may have criminal convictions, please get in touch with our Employment team.
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