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Ex-offenders

Overview

Employers may wish to establish whether a prospective employee has any previous criminal convictions. The existence of a conviction does not automatically mean that the person is unsuitable for employment. Often a conviction will have no relevance to a particular job applicant's suitability for the job.

Key points

  • An employer will be acting unlawfully if they refuse to employ a job applicant on the grounds that they have a spent conviction or that they have declined to disclose a spent conviction.
  • For certain types of employment, however, it will be lawful for an employer to take convictions into account when deciding whom to employ and, at their discretion, to reject an applicant on the grounds that they have a spent conviction.
  • Employers may want to conduct formal checks on whether a prospective job applicant has past convictions.
  • Under the General Data Protection Regulation and the Data Protection Act, information about a job applicant's criminal convictions is dealt with differently to other personal data.

Recent developments

Changes confirmed for criminal record disclosures

The Ministry of Justice has announced that changes will be made to the current disclosure of criminal record information. Seeking to remove barriers to employment for ex-offenders, the laws will be changed so that:

  • less serious sentences lasting over 4 years will not be disclosed once the rehabilitation period has passed (except in cases of most serious offences or for serious sexual, violent and terrorism offences)
  • disclosure periods for sentences of four years or less will be reduced.

These changes will be in place for non-sensitive roles, ie those involving working with children or vulnerable adults will not be subject to these changes. More detail of how this law change will take effect will be released by the government in due course.

Supreme Court finds system is a breach to privacy rights

In a recent decision, the Supreme Court has determined the process for criminal record disclosures is disproportionate to an applicant's right to privacy through disclosing convictions where an individual has more than one, and the indefinite disclosure of warnings provided to minors. The decision means the government will be required to review, and amend, the system in order to avoid any further breaches to human rights. More information can be found in our news story on this decision.

Disclosing relevant information
The High Court has decided, in the case R (on the application of P) v Secretary of State for Justice [2016], that allowing the police to decide whether to pass on information about previous offences (particularly where the role involves working with children or vulnerable adults) is a breach of Article 8 of the Human Rights’ Convention. The rules have already been amended to allow older offences not to be disclosed where appropriate. But the court held that rules about lifetime or indefinite disclosure went beyond what was needed legitimately and infringed the right to a private life, particularly where the offences were not serious.
 
Pending an appeal, or changes to the statutory provisions or existing guidance, employers carrying out checks should not count on minor offences (resulting in cautions or conditional discharges) being disclosed if they are not relevant to a particular role or committed many years ago.
 
Additionally, in July 2018, the Supreme Court decided, in R (on the application of AR) v Chief Constable of Greater Manchester Police and another, that it was not incompatible with human rights law to include information on an acquittal in an Enhanced Criminal Record Check, but such disclosures should be handled carefully.