In order to try and help ex-offenders to reintegrate into society, there are specific legal rules that enable certain convictions to be treated as ‘spent’ after a period of time, meaning that they do not need to be disclosed to a potential employer. These rules come from the Rehabilitation of Offenders Act 1974, but a recent update to the Act has made some important changes that employers need to be aware of.
The new rules, which came into effect on 28 October 2023, shorten the length of time before convictions become spent, provided that the individual in question doesn’t commit a further offence within a specified period.
The Government says that the changes will make it easier for ex-offenders to find work and move away from a life of crime.
In particular, many campaigners had argued that it was unfair that previously, if someone were given a custodial sentence of four years or more when they were under 18, that conviction would never be spent (the same as the position for adults) and that this did not properly reflect the fact that young offenders are usually more vulnerable than adults.
If an individual does reoffend during the rehabilitation period, they would have to disclose both their original and subsequent offences to employers for whichever rehabilitation period is longer (i.e. whichever period is longer before the offence would be considered ‘spent’).
It is important to point out that there are some serious offences (such as those relating to serious sexual, violent or terrorist crimes) which will never be considered spent – that was the case previously and remains the same now.
The new rules also will not affect the situation regarding roles where enhanced Disclosure and Barring Service (DBS) checks are required.
Previous rehabilitation periods
- Community Order – one year (six months for under 18s)
- Custodial sentence of six months or less – two years (18 months for under 18s)
- Custodial sentence of more than six months and up to 30 months – four years (two years for under 18s)
- Custodial sentence of more than 30 months and up to four years – seven years (3.5 years for under 18s)
- Custodial sentence of more than four years - never spent (the same for under 18s)
New rehabilitation periods from 28 October 2023
- Community Order – the last day on which the order had effect
- Custodial sentence of one year or less – one year
- Custodial sentence of more than one year and up to four years – four years
- Custodial sentence of more than four years – seven years
These rehabilitation periods are halved if the person was under 18 at the time when their offence was committed.
A reminder of how the law on spent convictions works in practice
Employers can ask job applicants and employees about their previous convictions, but individuals can only be required to provide details of convictions that are not spent.
Unless a job counts as an “excepted role” (such as one working with children or vulnerable adults) then an employer should not dismiss an employee for failing to disclose a spent conviction.
However, the legal protection for this is limited, in that it does not create an automatic unfair dismissal claim. Therefore an employee would normally need to have two years’ service in order to be able to claim that their dismissal was unfair if it were related to the fact that they had failed to disclose a spent conviction.
It is best for employers to adopt a consistent approach when it comes to asking about previous convictions, and also to ensure that any information obtained is handled in accordance with data protection rules (as details of previous convictions is considered to be particularly sensitive personal data).
Conclusion
It is important for employers to be aware of the changes in the law and on what they should and should not ask when it comes to previous convictions. If in doubt, it is best to take advice – do contact our Employment Team, who will be happy to help.