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What is the legal position in relation to prospective employees with criminal convictions?

07 August 2018

As an employer you are entitled to take into account current (or 'unspent') criminal convictions when deciding whether to offer a role to a prospective employee. However, it is still sensible to consider whether the conviction is really relevant to the position in question. In the interests of fairness, you might consider discussing with the applicant the circumstances surrounding the offence and any explanation they have to offer.

If a criminal record check, otherwise known as a Disclosure and Barring Service (‘DBS’) check, reveals an unspent conviction which, in your view, renders an applicant unsuitable for a job, then the offer can be withdrawn.

However, the Rehabilitation of Offenders Act 1974 prohibits any employer using knowledge of a ‘spent’ conviction as grounds for excluding prospective employees from employment or dismissing current employees unless an exception applies.

A ‘spent’ conviction is one where a person convicted of a criminal offence does not re-offend during the rehabilitation period following the conviction and therefore is considered rehabilitated. This is subject to certain exceptions where a conviction is not treated as spent and must be disclosed.

There is an Order listing a number of occupations, offices and professions, where a conviction is not considered spent and must be disclosed. Most notably, this includes jobs such as teaching, social work or health care that would involve working with children or vulnerable adults.

There is generally no requirement for prospective employees to tell their potential employers about spent convictions or cautions (unless they are not considered spent). However, there is also no prohibition on an employer asking a prospective employee about their criminal record.

Where you are not bound by sector-specific regulations and are able to exercise your own judgement as to the weight which should be attached to the person's criminal record, a risk assessment should be carried out which is relevant to the sector, position and situation.

A detailed guide on this topic will be issued shortly.

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