Changes to rules on previous convictions

Posted by Natalie Painter on
Changes to the rules on the rehabilitation of ex-offenders come into force on 10 March 2014, which will affect employers' recruitment practices.

The changes became law some time ago under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but their implementation has been delayed.

From 10 March, convictions will become 'spent' after shorter periods and shortly after that it will become a criminal offence for employers to require a person to disclose a record of spent criminal convictions, except to the extent permitted by the disclosure and barring provisions.

A person cannot be refused employment because he or she has a criminal conviction which is 'spent'. The Rehabilitation of Offenders Act 1974 provides that certain convictions are regarded as spent after a specified period of time and need not therefore be disclosed.

There are, however certain occupations in respect of which convictions never become 'spent'. There are also certain exceptions where employers are nevertheless able to ask job applicants about convictions or cautions which are spent – for example where a person is seeking to work with children or vulnerable adults under the disclosure and barring regime.

The existing and new 'rehabilitation periods' (i.e. the time after which a conviction will be considered spent) which will take effect from 10 March are as follows:

 

SENTENCE

 

Rehabilitation period to 9 March 2014 (applies from date of conviction)

 

Rehabilitation period on or after 10 March 2014 (applies from end of sentence)

0-6 months

7 years

2 years

6 months to 30 months

10 years

4 years

30 months to 4 years

Never

7 years

4 years and over

Never

Never

Fine or Community Service Order

5 years

1 year

Conditional Discharge

1 year or the period of the order if longer The period of the order

Absolute Discharge

6 months

Treated as spent immediately

 

As with the current scheme, the above periods are halved for persons under 18 at the date of conviction (except for custodial sentences of up to six months where the rehabilitation period will be 18 months).

The Ministry of Justice has published revised Guidance on how the spent convictions regime will work from 10 March.

The changes are retrospective.

In addition to the revised rehabilitation periods, the government has announced that it will shortly bring into force provisions of the Data Protection Act 1998 which will make it a criminal offence for an employer to require a person (whether a job applicant or an existing worker) to disclose any record that contains a reference to spent criminal convictions, unless the employer has the right to make such a request under the disclosure and barring scheme (e.g. for occupations that are excepted by regulations from the Rehabilitation of Offenders Act).

Depending on the type of work involved, many employers do not ask about previous convictions, or only do so later in the recruitment process when a job offer is conditional on satisfactory background checks.

If employers believe it is relevant to ask a prospective employee about previous convictions they will need to ensure that they are complying with the law on spent convictions as well as data protection law (criminal convictions are sensitive personal data under the Data Protection Act 1998).

About the Author

Natalie advises employers at all stages of Employment Tribunal proceedings and regularly provides bespoke training to clients on a variety of matters such as equal opportunities and employment law updates.

Natalie Painter
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