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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 government is considering new legislation that would not require individuals with more than one minor conviction to disclose this to organisations. This was in response to a Supreme Court decision, which 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. More information can be found in our news story on this decision.

Under these recently announced plans, existing legislation, the Police Act 1997, would be amended to help employees to no longer need to disclose:

  • youth cautions issued after 2013
  • youth reprimands and warnings issued before 2013
  • if they have more than one conviction, provided this conviction is specified as a ‘less serious offence.

With the coronavirus remaining the key issue for the government to tackle in the coming months, it remains to be seen when this law will come into force.