This content is locked!


To access this resource log in or Subscribe to Core.

Get instant access to 3 free resources of your choice. No credit card required.

Sign up now for free access

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

From 28 November 2020, individuals with more than one minor conviction no longer need to disclose this to organisations. This is in response to a Supreme Court decision, which determined the process for criminal record disclosures was 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. 

Under these new requirements, DBS checks will need to cover the following:

  • All convictions for specified offences
  • Adult cautions for specified offences
  • All convictions that resulted in a custodial sentence

Other records must be included depending on when the caution or conviction was received:

  • Any adult caution for a non-specified offence received within the last 6 years
  • Any adult conviction for a non-specified offence received within the last 11 years
  • Any youth conviction for a non-specified offence received within the last 5 and a half years

However:

  • Any cautions (including reprimands and warnings) and convictions not covered by the rules above are ‘protected’ and will not appear on a DBS certificate automatically
  • Cautions, reprimands and warnings received when an individual was under 18 will not appear on a Standard or Enhanced certificate automatically
  • 'Multiple convictions', where an individual has more than one conviction, will also not automatically appear.